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International Law 







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This annual volume, prepared by George Grafton 
Wilson, LL. D., professor of international law at Har- 
vard University, covers the situations and discussions on 
this subject by the War College class of 1931. Professor 
Wilson's method has been to propound situations in- 
volving timely questions and after critical discussion to 
organize the material for publication. This procedure 
has led to the production of a series of studies of live 
questions on the maritime phases of international law, 
unique in design, but which should prove useful to offi- 
cers and others whose profession takes them within the 
realm of international law. New fields are entered, es- 
pecially in connection with aviation, where in many re- 
spects maritime precedents are followed. 

In order to increase the usefulness of this publication, 
suggestions and criticism will be welcomed by the War 
College covering both topics and situations. 

Harris Laning, 
Rear Admiral, United States Navy, 
• President United States Naval War College. 

July 16, 1931. 



Situation I. — London naval treaty, article 22, and sub- 
marines I 

Solution ' 1 

Notes . 2 

London naval treaty, 1930 2 

Loss of immunities 5 

Classes of armed vessels 10 

Attitude of Netherlands 14 

South American attitude toward armed merchant 

vessels 15 

British opinion, 1916 16 

Case of the Panama 16 

Article 14 and days of grace ,. 17 

Naval unit 19 

American proposal, 1916 21 

German attitude, 1916 22 

Armed merchant vessels and submarines 23 

Submarines and the Washington Conference on 

Limitation of Armaments, 1921-22 25 

American advisory committee, Washington Con- 
ference on the Limitation of Armament 36 

Inability to afford place of safety 36 

Summons 37 

Detention 38 

Capture 40 

Classes of ships 41 

State control of shipping 44 

Control of shipping by the United States 45 

Certificate of requisition 45 

Charters 45 

The Shipping Board 45 

Ships on time charter 47 

Neutral attitude 47 

Belligerent attitude 47 

Shipping Board vessels 48 

Treatment of vessels 51 

Ground of suspicion 52 



Situation I. — London naval treaty, etc. — Continued. 

Notes — Continued. Page 

Bringing in of prize 54 

British practice, 1914-15 56 

Restriction of commerce by reprisals 59 

Instructions of the United States, 1917 62 

Changes in practice, 1914-1918 62 

Defense and offense 64 

Solution 65 

Situation II. — Absence of local authority 66 

Solution 66 

Notes 67 

(a) Order in port 67 

Order in port 67 

Necessity 69 

Protection and aliens , 69 

Intervention 70 

Interposition of foreign forces 71 

Instructions, 1891 72 

Protected zones 73 

Bluefields, 1910 74 

Protection of foreigners 76 

Obligation of protection 78 

President Coolidge on treaty of 1923 78 

Neutral zone at Bluefields 80 

United States attitude 81 

Resume 83 

Solution 83 

(6) Salvage 84 

Salvage 84 

Salvage award 85 

Treaty of 1910 85 

Legislation of the United States 86 

The Porto Alexandre, 1920 87 

Treaty with Siam, 1920 88 

Resume 88 

Solution 90 

(c) Deserters 90 

Act of March 4, 1915 90 

Arrest of deserters 91 

Solution 91 

(d) Closure of ports 91 

Closure of ports 91 

Renouncing protection 95 

Solution 97 



Situation III. — Belligerent aircraft 98 

Solution 99 

Notes 99 

(a) Law of aerial warfare 99 

Law of aerial warfare 99 

Aircraft in war 100 

Feasibility of use of aircraft 100 

Summons by aircraft 102 

Aircraft as an auxiliary 102 

Aircraft attached to vessels of war 103 

Aircraft on vessels of war 104 

Washington proposals, 1922 104 

Discussion in 1923 105 

American attitude, 1923 105 

British attitude, 1923 106 

Italian attitude, 1923 108 

Japanese attitude, 1923 108 

Report of committee of jurists, 1923 109 

Division of opinion, 1923 109 

Aircraft and deviation 110 

Discussion in 1927 111 

Preparatory disarmament conference 112 

Deviation for visit and search 112 

Resume 113 

Application of principles 115 

Obligation of neutral cruiser 115 

Solution 115 

(b) Canals in war time 115 

Suez Canal treaty 115 

Comments on draft in 1887 116 

British Government attitude, 1898 119 

Hay-Pauncefote treaty, 1901 120 

British opinion on Panama Canal 121 

The Suez Canal 122 

Suez Canal and Port Said 124 

Case of the Derfflinger 126 

Kiel Canal 127 

Solution 131 

(c) Panama Canal Zone 131 

Treaties with Panama 131 

Panama's neutrality, 1914 131 

Swiss ordinance, 1914 133 

Delivery of aircraft in neutral port 134 

Cruiser of X in neutral ports 134 

Panama and the Panama Canal 134 

Solution 135 


London Naval Treaty of 1930 137 

Situation I 


It is granted that the London naval treaty x has been 
ratified by the signatories and that article 22 has been 
assented to by all other States. Subsequently there is 
war between states X and Y. Other states are neutral. 

(a) The Star, a merchant vessel owned by a citizen 
of and flying the flag of state Y and having its decks 
stiffened for the mounting of 6-inch guns, receives a 
summons from submarine No. 5 of state X to lie to, but 
the Star continues on its course. Submarine No. 5 
communicates with submarine No. £, which is on the 
course the Star is taking, to sink the Star. Submarine 
No. 6 without coming to the surface sinks the Star. 

After the war claims are made against state X on the 
ground that the action of the submarines was illegal. 
What should be the decision, and why? 

(b) Would the discovery by submarine of state X 
that on an enemy merchant vessel equipped in a manner 
similar to the Star 6-inch guns are mounted and pointed 
toward the submarine be sufficient to justify sinking of 
the merchant vessel even if they are not yet fired? 

(c) May the submarine order a merchant vessel to ac- 
company it under penalty of being sunk ? 


(a) Under the conditions, the action of submarine No. 
5 in summoning the Star to lie to is legal and submarine 
No. 5 may, in case of persistent refusal, use force as would 

1 See the London Naval Treaty of 1930, Appendix, p. 137. 


a surface vessel. The action of submarine No. 6 in sink- 
ing the Starr is illegal because not in accord with article 
22 of the London naval treaty. 

(o) The submarine of state X would be justified in 
firing upon an enemy merchant vessel whose decks have 
been strengthened for mounting 6-inch guns when the 
guns are mounted and pointed at the submarine. 

(c) A submarine may order a merchant vessel to ac- 
company it to port under penalty of being sunk. 


London Naval Treaty, 1930. — The London naval treaty 
of 1930 specifically states its purpose to carry forward 
the work begun at the Washington Naval Conference of 
1921-22. At the Washington conference a treaty relat- 
ing to the use of submarines and noxious gases in war- 
fare was drawn up but was never ratified by all the 
powers. Article 22 of the London naval treaty of 1930 
was therefore the carrying forward of the regulation of 
the use of submarines. 

In the discussion of the submarine at the London 
Naval Conference the representative of Great Britain, 
followed by the representatives of the British Common- 
wealth of Nations, favored the abolition of the sub- 

The following statements were made by Mr. Stimson 
of the American delegation : 

The American delegation at this conference is in favor of the 
abolition of the submarine. At the Washington conference in 
1921-22 the American delegation accepted the view of their naval 
advisers that the United States needed a submarine force. They 
were therefore, at that time, opposed to its abolition. Such a 
stand was based upon purely naval strategy without reference 
to humanitarian considerations, because the conference agreed 
that the submarine should not be used aganist commerce except 
under the same obligations relative to the safety of passengers 
and crew, which applied to surface craft * * *. 

The essential objection to the submarine is that it is a weapon 
particularly susceptible to abuse; that it is susceptible of use 


against merchant ships in a way which violates alike the old 
and well-established laws of war and the dictates of humanity. 
The use made of the submarine revolted the conscience of the 
world, and the threat of its unrestricted use against merchant 
ships was what finally determined the entry of my own country 
into the conflict. In the light of our experience it seems clear 
that in any future war those who employ the submarine will be 
under strong temptation, perhaps irresistible temptation, to use 
it in the way which is most effective for immediate purposes, 
regardless of future consequences. These considerations con- 
vince us that technical arguments should be set aside in order 
that the submarine may henceforth be abolished. 

We have come to the conclusion that our problem is whether, 
in this day and age and after the experiences of the last war, the 
nations at this conference are justified in continuing to build 
these instruments of warfare, thereby assuming responsibility 
for the risk of repeating, in any possible future wars, the in- 
humane activities which have been condemned by the verdict 
of history. (Proceedings, London Naval Conference, 1930, p. 82: 
et seq.) 

Mr. Leygues speaking for France said : 

The submarine has often been mentioned as a machine without 
its like in naval warfare. That saying can hardly be main- 
tained either as a matter of principle or as a matter of fact. 
Compared with the other ships, what are the distinctive features 
of the submarine? To the gun and torpedo, joined together, it 
adds submersion. 

The latter discovery is never more surprising, nor in itself 
more unlawful, than was at the time of its first appearance the 
steamship as opposed to the sailing vessel. 

To every improvement of offensive weapons corresponds a 
progress in defensive weapons. To the gun and the torpedo were 
opposed the armor, bulkheads, and the bulge. Against the sur- 
prise attacks of the submarine, navies already protect themselves 
by nets, mines, and the listening detectors. 

The wireless has indeed multiplied the military efficiency of 
the submarine. But it must be some day or other outdone by a 
new appliance which will not only reduce its offensive or defen- 
sive powers to the level of older weapons but will show off its 
relative weakness. 

Only the total abolition of war fleets might put a stop to the 
continual progress of technical evolution. 

It has been maintained, on the other hand, that the submarine 
could only be used against merchant ships. The history of the 
recent war proves the contrary. * * * 


We have yet to discuss the opinion that has been spread of the 
submarine being a barbarous instrument of war. It owes such a 
reputation to the use made of it in some quarters against mer- 
chant ships, in violation of the principles of humanity which are 
the foundation of international laws. But such violation Is 
ascribable to those who have used the submarine to that effect, 
not to the submarine itself. 

The use of the submarine against merchant ships is not neces- 
sarily unlawful. Everything depends on the intention behind it. 
There is no weapon which can not be used for criminal pur- 
poses. * * * 

Since then, the evolution of the submarine has made it still 
more capable of carrying out extended operations while observing 
the rules established for surface ships. If submarines can fulfill 
the same duties, why should they not enjoy the same rights? 

The logical conclusion is to treat alike, as far as both rights 
and duties are concerned, the submarine and the surface ship, 
and this is the conclusion to which the French Government has 

The French Government is of opinion that an unrestricted 
submarine war against maritime trade should be outlawed. The 
right of visit, search, and seizure should be exercised by sub- 
marines under the rules, both present and future, to be observed 
by surface ships. (Ibid., pp. 85, 87.) 

Admiral Takarabe, of the Japanese delegation, said: 

The merits of a submarine are to be judged not by what it did 
but by what it is. It is not a ruthless weapon to be condemned 
in contradistinction to the surface craft. For that matter, what 
weapons of war can not be put to the merciless use of victimizing 
lives and property to no purpose? * * * 

As to the necessity of putting an end, once and for all, to the 
recurrence of the appalling experiences of the World War, 
Japan heartily associates herself with the proposal which is 
apparently in the minds of all our colleagues to submit this cate- 
gory of arms to a strict circumscription by law. It was Japan's 
wish that the measure should early be adopted, and she not only 
signed the submarine treaty agreed upon at the Washington Con- 
ference but soon ratified it. She wishes most ardently that the 
present conference will revive that question and will succeed in 
finding a proper and effective formula, but more satisfactory in 
its conception than its invalid predecessor, so that all powers 
represented at this table should unite in making it operative in 
no distant future. Japan gives her full support to an under- 
taking to outlaw the illegitimate use of the legitimate and defen- 
sive agency of war. (Ibid., pp. 91, 92.) 


A committee of jurists considered the proposition re- 
ferred to committee No. 1 by the conference at its fourth 
plenary meeting in regard to " forbidding submarines to 
act towards merchant ships, otherwise than in strict con- 
formity with the rules, either present or future, to be 
observed by surface warships." 

This committee of jurists recommended a declaration 
to the following effect : 

The undersigned, duly authorized to that effect on behalf of 
their respective Governments, hereby make the following declara- 
tion : 

The following are accepted as established rules of international 
law : 

(i) In their action with regard to merchant ships, submarines 
must conform to the rules of international law to which surface 
war vessels are subject. 

(ii) In particular, except in the case of persistent refusal to 
stop on being duly summoned, or of active resistance to visit or 
search, a warship, whether surface vessel or submarine, may not 
sink or render incapable of navigation a merchant vessel without 
having first placed the passengers, crew, and ship's papers in a 
place of safety. For this purpose the ship's boats are not re- 
garded as a place of safety unless the safety of the passengers 
and crew is assured, in the existing sea and weather conditions, 
by the proximity of land or the presence of another vessel which, 
is in a position to take them on board. (Ibid. p. 189.) 

In its report the committee said: 

The committee wish to place it on record that the expression 
" merchant vessel," where it is employed in the declaration, is 
not to be understood as including a merchant vessel which is at 
the moment participating in hostilities in such a manner as to 
cause her to lose her right to the immunities of a merchant 
vessel. (Ibid. p. 189.) 

While this report was not adopted by the conference, 
it is usually regarded in absence of statement to the con- 
trary that an article is to be interpreted in the sense in 
which it is interpreted by the drafting committee. 

Loss of immunities. — The attempts to define such terms 
as " armed ship " have met with many difficulties. At- 
tempts to define the term for purposes of national admin- 


istration have not been satisfactory. National courts 
have been obligated to make interpretations of their 
own laws in case of capture of armed ships. Prize 
money, bounty to the personnel of a vessel of war making 
a capture, and similar awards were common till recent 
times and are still made. 

In 1805 in the case of Several Dutch Schurjts the 
British court in declining to grant head money to the 
captors of " armed vessels taken from the enemy, and 
described as transports " said : 

They may be armed only for their own defense ; as they have 
no commission to act offensively, they can not be considered 
legally as ships of war, to the effect of entitling the captors to 
head money. (6 Robinson Admiralty Reports, p. 48.) 

A somewhat different attitude was taken by the judicial 
committee of the Privy Council in the case of H. M. 
submarine E-14, which destroyed tfye Turkish vessel 
Guj Djemal on May 10, 1915. The prize court had dis- 
missed the claim of the personnel of the E-lJf for prize 
bounty on the ground that under the naval prize act of 
1864 the expression " armed ships " should be construed 
to mean " a fighting unit of the fleet, a ship commissioned 
and armed for the purpose of offensive action in a naval 
engagement," and that the Guj Djemal, acting as a Turk- 
ish transport, was not such a ship. The case was dis- 
missed without prejudice in case further evidence could 
be adduced. 

The facts proved at the first hearing were as follows: (a) The 
Guj Djemal before the war was a unit of the Turkish Navy, and 
appeared as such in the official lists of the Turkish Naval Forces ; 
(&) the Guj Djemal was a fleet auxiliary manned by naval rat- 
ings and commanded by an officer of the Turkish Navy; (c) 
Turkish fleet auxiliaries were usually armed with about four 
light 6-pounder guns, but there was no definite evidence that the 
Guj Djemal was so armed; (d) the Guj Djemal, at the time of 
her destruction, was carrying troops, with their rifles and ammu- 
nition, to the number of approximately 6,000; (c) the Guj Djemal 
had on board six field guns, but there was no definite evidence as 
to where the guns were placed; (f) the Guj Djemal was escorted 


by a torpedo boat destroyer, and either the Guj Djemal or her 
escort fired at E-V { ; and ((/) rifle fire is effective against the 
periscope of a submarine and E-U had previously lost one peri- 
scope, and had the other become damaged she would have been 
unable to return through the Dardanelles to her base. 

The further facts proved at the second hearing, in addition to 
the head bounty certificates produced, were that: (a) the Guj 
Djemal was in fact armed with six light quick-firing guns; (b) 
the field guns were placed on board the Guj Djemal in the after 
part of the ship, and on each side of the ship in such manner 
that they could be used as an addition to the armament of the 
ship, and ammunition for the guns was placed alongside the guns: 
and (c) field guns had in fact been used in similar circumstances 
to fire on His Majesty's submarines operating in the Sea of 
Marmora. (3 Grant, Br. and Col. Prize Cases, p. 568.) 

In rendering the judgment of the judicial committee. 
Lord Sumner said as to the question whether the Guj 
Djemal is " an armed ship of any of His Majesty's 
enemies " : 

This is entirely a matter of construction of the section in its 
application of the facts of this case, and no other question was 
raised in the appeal. Little assistance, if any, is to be derived 
from prior decisions or earlier legislation. No decision before 
the war turned on or touched this section, and in the cases de- 
cided during the war the present contention had not been raised. 
The older acts go back for many generations. At one time the 
number of guns, and not of men carried by the ship destroyed, 
was the measure of the grant, and until the Crimean War the ex- 
pression " armed ship " was not used. (1920 A. C, p. 403.) 

It was admitted that the combatant capacity of the 
Guj Djemal was not high and that she had not used her 
armament, that the armament was only incidental, and 
that such contentions had influenced the prize court in 
deciding that an armed ship, within the meaning of 
the section to be construed, is a fighting unit of the fleet, 
a ship commissioned and armed for the purpose of offen- 
sive action in a naval engagement. This construction 
was not sustained on appeal, and it was said : 

Evidently this proposition is open to several objections. It 
makes the rights of His Majesty's forces depend on the purpose 
with which his enemies may have dispatched their vessel on what 


either way is a warlike service. It employs a term, " offensive 
action," which, in practice, is of indefinite meaning, and in any 
case involves an inquiry into the state of mind of the hostile 
commander. Sir Samuel Evans elucidated his meaning thus in 
another passage : " In my opinion, if it were proved that she 
carried a few light guns, that would not constitute her an armed 
ship any more than a merchant vessel armed for self-defense; 
nor would the fact that she carried troops armed with rifles and 
some field guns and other ammunition intended to be used after 
the landing of the troops." 

Their lordships are unable to accept these propositions. Of 
the case of a merchant ship they say nothing, for this is a ques- 
tion on the meaning of the words " ship of the enemy," and the 
appellants did not contend, nor needed they to do so, that any 
ship but one in state service would be covered by those words. 
There is again no evidence that the rifles and field pieces were 
not intended to be used at sea under any circumstances, little 
as any occasion for their use was to be looked for, and it must 
be recollected that defense is not confined to taking to one's heels 
or even to returning a blow, but, in the jargon of strategy, may 
consist in an offensive-defensive, or in plain words in hitting 
first. No criteria would more embarrass the application of the 
enactment than these, and to introduce the test of a ship's com- 
mission is to introduce something which involves a rewriting of 
the section. 

Their lordships are of opinion that the words of the section are 
plain, and that the facts fit them, and accordingly the appellants 
are entitled to succeed ; that the decree appealed against should 
be set aside; and that this appeal should be allowed with costs, 
and that the case should be remitted to the prize court to make 
such formal decree in favour of the appellants as may be required. 
Their lordships will humbly advise His Majesty accordingly. 
(3 Grant, Br. & Col. Prize Cases, p. 568.) 

This judgment shows the difficulty of establishing cri- 
teria for such words as " offense " and " defense." It 
may also be said that " the test of the ship's commission " 
is in general difficult, if possible, for an enemy to apply. 

The status of armed merchant vessels has raised ques- 
tions in regard to both policy and law. If the law is not 
clear, then the relations as belligerent on the offensive, 
on the defensive, and as a neutral must be considered and 
the policy determined accordingly. 


During the World War there was much difference of 
opinion as to the law, particularly because of new exi- 
gencies of transportation. Early precedents concerned 
with the irregular maritime warfare of the period prior 
to and during the Napoleonic wars refer to private and 
public vessels only. 

Publicly owned armed or unarmed merchant vessels 
make a practically new category upon which there is much 
difference of opinion. Such publicly owned vessels of a 
belligerent certainly have a doubtful status both as re- 
gards the belligerents and as regards the neutrals. Nat- 
urally there arise questions as to the reasons for and 
the liability in consequence of arming. Some maintain 
that the rights and duties of the vessels themselves would 
under modern conditions change. The source of the 
equipment and the personnel for its use has in rjecent 
years been entirely different from that of private vessels 
of the early years of the nineteenth centuiy. 

The volunteer fleet of Imperial Russia and similar 
fleets of other States raised questions in regard to piracy 
or the piratical nature of armed merchant vessels. 

Subsidized merchant vessels and the state control of 
shipping introduced a mixed relationship to the state 
of the flag. 

The position of the United States was not uniform 
throughout the war, and when the Dutch ships were 
taken over other complications were introduced; while 
the requisitioning of other vessels gave rise to further 

The problems of conversion and the place of conversion 
may properly be considered. 

Armed merchant vessels in neutral waters may pro- 
voke such correspondence as that between the Nether- 
lands and Great Britain. 

The attitude of the Conference on Limitations of Ar- 
mament in 1921-22 and in 1930 presumed the arming of 
merchant vessels. 

69574—31 2 


Many neutrality proclamations during the World War 
anticipated that merchant vessels might be armed. 

Neutral merchant vessels received guns and took on 
naval gun crews, and the effect upon their status was 

The correspondence of the United States on armed 
merchant vessels began early in the World War and 
continued till the United States entered the war. 

The effect of arming merchant vessels may modify 
the operation of the well-established rules of the Decla- 
ration of Paris in regard to goods on enemy vessels. It 
should be emphasized that acts of retaliation do not 
change the law. 

Classes of armed vessels. — The classification of armed 
vessels in order that their treatment in time of war might 
be determined has long been a subject of discussion. At 
the Hague Conference of 1907 Lord Reay proposed a 
classification of vessels of war into (1) vaisseaux de com- 
bat, and (2) vaisseaux auxiliaires. After much discus- 
sion and a report by a committee the definition of vais- 
seaux auxiliaires was withdrawn. In 1912 British regu- 
lations stated : 

The term " ship of war " is to be understood as including all 
ships designated as such in the accepted sense of the term and 
also auxiliary vessels of all descriptions. 

In a note of August 4, 1914, from the British charge 
to the Secretary of State of the United States, the atten- 
tion of the United States was called to the rules of the 
treaty of Washington of 1871 as having "the force of 
generally recognized rules of international law." It was 
also stated that Germany might attempt to equip and 
despatch merchantmen from ports of the United States 
for conversion on the high seas and that preparations 
for such purpose might be manifest before the vessel left 
port and that in these cases " His Majesty's Government 
will accordingly hold the United States Government re- 
sponsible for any damages to British trade or shipping, 


or injury to British interests generally, which may be 
caused by such vessels having been equipped at or de- 
parting from United States ports." (9 Am. Jour. Int. 
Law, Spec. Sup., July, 1915, p. 222.) 

In another note of August 9, 1914, referring to the 
previous note, not merely the British point of view as to 
the responsibility but also as to the duty of neutrals was 
set forth as regards British armed merchant vessels: 

As you are no doubt aware, a certain number of British mer- 
chant vessels are armed, but this is a precautionary measure 
adopted solely for the purpose of defense, which, under existing 
rules of international law, is the right of all merchant vessels 
when attacked. 

According to the British rule, British merchant vessels can not 
be converted into men-of-war in any foreign port, for the reason 
that Great Britain does not admit the right of any power to do 
this on the high seas. The duty of a neutral to intern or order 
the immediate departure of belligerent vessels is limited to actual 
and potential men-of-war, and in the opinion of His Majesty's 
Government there can therefore be no right on the part of 
neutral governments to intern British armed merchant vessels 
which can not be converted into men-of-war on the high seas 
nor to require them to land their guns before proceeding to sea. 

On the other hand, the German Government have consistently 
claimed the right of conversion on the high seas, and His 
Majesty's Government therefore maintain their claim that ves- 
sels which are adapted for conversion and under German rules 
may be converted into men-of-war on the high seas should be 
interned in the absence of binding assurances, the responsibility 
for which must be assumed by the neutral government concerned, 
that they shall not be so converted. (Ibid. p. 223.) 

The United States in a note of August 19, 1914, dis- 
claimed as a correct statement of its responsibility the 
assertion of the British note. The British ambassador 
on August 25, 1914, gave the Secretary of State "the 
fullest assurances that British merchant vessels will 
never be used for purposes of attack; that they are 
merely peaceful traders armed only for defense; that 
they will never fire unless first fired upon; and that they 
will never under any circumstances attack any vessel." 
(Ibid. p. 230.) Later, on September 9, 1914, the atti- 


tude which the British affirmed as correct under interna- 
tional law was stated. 

A merchant vessel armed purely for self-defense is, therefore, 
entitled under international law to enjoy the status of a peaceful 
trading ship in neutral ports and His Majesty's Government do 
not ask for better treatment for British merchant ships in this 
respect than might be accorded to those of other powers. They 
consider that only those merchant ships which are intended for 
use as cruisers should be treated as ships of war and that the 
question whether a particular ship carrying an armament is in- 
tended for offensive or defensive action must be decided by the 
simple criterion whether she is engaged in ordinary commerce and 
embarking cargo and passengers in the ordinary way. If so, 
there is no rule in international law that would justify such vessel, 
even if armed, being treated otherwise than as a peaceful trader. 

In urging this view upon the consideration of the United States 
Government the British ambassador is instructed to state that it 
is believed that German merchant vessels with offensive arma- 
ment have escaped from American ports, especially from ports 
in South America, to prey upon British commerce in spite of all 
the precautions taken. German cruisers in the Atlantic continue 
by one means or another to obtain ample supplies of coal shipped 
to them from neutral ports ; and if the United States Government 
take the view that British merchant vessels which are bona fide 
engaged in commerce and carry guns at the stern only are not per- 
mitted purely defensive armament, unavoidable injury may en- 
sue to British interests and indirectly also to United States trade 
which will be deplorable. (Ibid. p. 233.) 

This note seems to mix to some degree, legal and com- 
mercial reasoning. 

On March 2, 1916, the British Government made 
public instructions issued in regard to armed merchant 
ships which were stated to be an affirmation of a policy 
Avhich had remained unchanged throughout the war. 
In these instructions the circumstances under which 
armament should be employed were as follows : 

(1) The armament is supplied for the purpose of defense only. 
The object of the master should be to avoid action whenever 

(2) Experience has shown that hostile submarines and air- 
craft have frequently attacked merchant vessels without warn- 
ing. It is important, therefore, that craft of this description 


should not be allowed to approach to short range, at which a 
torpedo or bomb launched without notice would almost certainly 
be effective. British and allied submarines and aircraft have 
orders not to approach merchant vessels ; consequently, it may be 
presumed that any submarine or aircraft which deliberately ap- 
proaches or pursues a merchant vessel does so with hostile inten- 
tion. In such cases fire may be opened in self-defense in order to 
prevent the hostile craft from closing to a range at which resist- 
ance to a sudden attack with bomb or torpedo would be impossible. 

(3) An armed merchant vessel proceeding to render assistance 
to the crew of a vessel in distress must not seek action with any 
hostile craft, though if she herself is attacked while doing so fire 
may bo opened ill self-defense. 

(4) It should be remembered that the flag is no guide to na- 
tionality. German submarines and armed merchant vessels have 
frequently employed the British, allied, or neutral colors to ap- 
proach undetected. Though, however, the use of disguise and 
false colors to escape capture is a legitimate ruse de guerre, its 
adoption by defensively armed merchant ships may easily lead to 
misconception. Such vessels, therefore, are forbidden to adopt 
any form of disguise which might cause them to be mistaken for 
neutral ships. (1917 N. W. C, International Law Documents, 
p. 154.) 

In paragraph (2) there is provision for opening fire 
by the armed merchant vessel, and paragraph (4) shows 
some of the possible consequences anticipated from arm- 
ing of merchant vessels. These depart from the assur- 
ances of August 25 that British armed merchant vessels 
" will never fire unless first fired upon, and that they will 
never under any circumstances attack any vessel." 

In 1916 in a document ordered printed by the Senate of 
the United States a translation of a report citing the 
opinion of Prof. W. J. M. von Eysinga, then of the Uni- 
versity of Leiden, later a judge of the Permanent Court 
of International Justice, it was said: 

It is difficult to predict what is to be the development of the 
obscure legal category ships. In any case this development will 
be strongly influenced by the attitude of insurance companies 
toward armed merchantmen. Just now no other governments 
seem as yet to have followed the example of the British Admi- 
ralty. Still the number of armed ships sailing under the British 
flag keeps on increasing and the other governments will be con- 


strained by the fact to inquire what shall be their attitude toward 
these ships both in time of peace and in time of war. If an Eng- 
lish war were to arise, would not neutral powers transgress by 
admitting armed merchantmen to their ports and waters? What 
measures will neutral powers be obliged to take in order to 
prevent these armed ships from assuming the right to enforce 
restrictive measures on neutral commerce? Does public security 
allow of admitting armed ships to enter port, even in time of 
peace, without having unloaded their explosives? And are bellig- 
erents to take these armed ships as belligerent ships, or are they 
to have to treat them otherwise? If so, in what manner? 

All these questions and many others would lose their practical 
significance if a way were found to abolish the institution of 
armed merchantmen. It will not be an easy matter. But pos- 
sibly Great Britain might be induced to abandon the course upon 
which she has entered. It need not be said that the problem 
would no longer have a practical side if a way were found to 
" regularize " the armed ships by granting them the juridical 
status of what in reality they seem to be, viz, auxiliary men-of- 
war. The study of this solution should also include the question 
whether a government arming ships without assuming responsi- 
bility for their acts is satisfactorily performing the duties which 
members of the community of nations owe to their fellows. (S. 
Doc. No. 332, 64th Cong., 1st sess., p. 43.) 

Attitude of Netherlands. — The Netherland declaration 
of neutrality. August 5, 1914, denied access to continental 
Dutch ports to " warships or ships assimilated thereto." 

British opposition to this Dutch position was immedi- 
ate in a telegram of Sir Edward Grey, August 8. 1914. 
(British Parliamentary Papers, Misc., No. 14 (1917) Cd. 
8690.) In a letter of April 7, 1915, the Dutch Minister of 
Foreign Affairs said of his Government : " The observation 
of a strict neutrality obliges them to place in the category 
of vessels assimilated to belligerent warships those mer- 
chant vessels of the belligerent parties that are provided 
with an armament and that consequently would be 
capable of committing acts of war" (Ibid, p. 3). and 
on July 31, 1915, he again maintains the Government's 
purpose to exclude " any belligerent merchant vessel 
armed with the object of committing, in case of need, an 
act of war." (Ibid, p. 6.) The Government at the same 


time admits that such armament may be lawful, so far 
as the belligerent is concerned. 

In a letter of April 4, 1917, Mr. Loudon says : 

In fact, a state in the very special geographical position in which 
the Netherlands find themselves in relation to the belligerent 
nations could not insure respect for neutrality of the territory 
under its jurisdiction, except by forbidding access to this territory 
not only to warships but also to every armed vessel. (Ibid., p. 8.) 

Lord Robert Ce^il in May, 1917, made an extended 
argument to maintain that an " armed merchantship, such 
as those with which we are now dealing," can in no sense 
be assimilated to a warship, which phrase should cover 
only auxiliary vessels of various kinds and not armed 
merchant vessels. (Ibid., p. 11.) He also intimated that 
Great Britain "must hold the Netherlands Government 
responsible for all losses to British ships trading with 
Holland so long as those vessels are, if they enter a 
Netherland port, obliged to forego their right to provide 
themselves with means of self-defense." (Ibid., p. 13.) 
This responsibility the Dutch Government declined 
" without hesitation." 

South American attitude toivard armed merchant ves- 
sels. — After the publication of the memorandum of the 
Department of State of September 19, 1914, 1 some of 
the South and Central American states inclined to follow 7 
the same procedure in regard to the treatment of armed 
merchant vessels. Some of these states, how r ever, found 
cause for complaint in the arming of merchant vessels, 
and domestic laws in some states prohibited the entrance 
of vessels with explosives on board, and some states had 
other regulations restricting the entrance and sojourn of 
such vessels. Complaint was made in South America in 
the early days of the World War that if armament was 
solely for defense it w r ould generally be useless, that the 
responsibility for the use of armament should be upon the 
state whose flag the vessel flew; that irresponsible mer- 

1 Naval War College, International Law Topics, 191G, p. 93, 


chantmen would not be familiar with or observe the laws 
of maritime warfare ; that such vessels would be neither 
privateers nor merchantmen but privileged vessels free 
from the restrictions placed upon vessels by the existing 
laws of neutrality. Further, if the arms were used solely 
for defense, the use of these arms or the fact that they 
were on board for possible use would justify an enemy 
in attacking such vessels without meeting the usual obli- 
gations prior to attack, thus unnecessarily endangering 
innocent persons and property. Some of these states in 
early discussions and reports predicted that the arming 
of merchant vessels would be followed by abuses which 
would give rise to complications which might and should 
be avoided by enrolling all armed vessels in the regular 
or auxiliary forces. 

British opinion, 1916. — On December 21, 1916, the 
First Lord of the Admiralty, replying to a question on 
armed merchant vessels, said : 

His Majesty's Government can not admit any distinction be- 
tween the rights of unarmed merchant ships and those armed 
for defensive purposes. It is no doubt the aim of the German 
Government to confuse defensive and offensive action with the 
object of inducing neutrals to treat defensively armed vessels as 
if they were men-of-war. Our position is perfectly clear — that a 
merchant seaman enjoys the immemorial right of defending his 
vessel against attack or visit or search by the enemy by any 
means in his power, but that he must not seek out an enemy in 
order to attack him — that being a function reserved to commis- 
sioned men-of-war. So far as I am aware, all neutral powers, 
without exception, take the same view, which is clearly indi- 
cated in the Prize Regulations of the Germans themselves. I 
have confined myself to stating the general position, but my 
honorable friend may rest assured that the departments con- 
cerned are devoting continuous attention to all questions con- 
nected with the theory and practice of defensive armament. 
(88 Parliamentary Debates, Commons, 1916, 5th series, p. 1627.) 

Case of the " Panama" — In the case of the Panama, a 
Spanish vessel carrying mail, 1898, the Supreme Court 
said : 


It may be assumed that a primary object of her armament, and, 
in time of peace, its only object, was for purposes of defense. 
But that armament was not of itself inconsiderable, as- appears 
not only from the undisputed facts of the case but from the 
action of the district court, upon the application of the commo- 
dore commanding at the port where the court was held, and on 
the recommendation of the prize commissioners, directing her 
arms and ammunition to be delivered to the commodore for the 
use of the Navy Department. And the contract of her owner with 
the Spanish Government, pursuant to which the armament had 
been put on board, expressly provided that in case of war that 
Government might take possession of the vessel with her equip- 
ment, increase her armament, and use her as a war vessel ; and, 
in these and other provisions, evidently contemplated her use for 
hostile purposes in time of war. (176 U. S. [1900] 530.) 

Article H and days of grace. — Article 14 of the Wash- 
ington Treaty Limiting Naval Armament, 1922, provides 
that — 

No preparations shall be made in merchant ships in time of 
peace for the installation of warlike armaments for the purpose 
of converting such ships into vessels of war, other than the neces- 
sary stiffening of decks for the mounting of guns not exceeding 
6-inch (152 millimeters) caliber. (1921 N. W. C, International 
Law Documents, p. 299.) 

Many queries have arisen as to the treatment of mer- 
chant ships having decks stiffened for 6-inch guns. 

It seems to be clear that under article 5 of Sixth Hague 
Convention, 1907, relative to the status of enemy mer- 
chant ships at the outbreak of hostilities, the question 
might arise. Article 5 is as follows: 

The present convention does not affect merchant ships whose 
construction indicates that they are intended to be converted into 
ships of war. 

The French text, which is official, is: 

La presente Convention ne vise pas les navires de commerce 
dont la construction indique qu'ils sont destines & gtre trans- 
formes en batiments de guerre. 

The representatives of the United States at The Hague 
did not sign this on the ground that it should have been 


more positive in its obligations in order to conform with 
existing law. and Great Britain denounced the convention 
in 1925 for similar reasons. 

This article 5 was proposed by the British delegation in 
1907, and the words used were, " navires marchands enne- 
mis susceptibles d'etre transformes en vaisseaux de com- 
bat." The drafting committee made this read, " navires 
marchands qui ont ete designes d'avance pour etre trans- 
formes en bailments de guerre." 

This article 5 was discussed at length in the conference. 
In the discussion Lord Reay, of the British delegation, 
said he had — 

no idea of casting suspicion upon the good faith of Governments, 
but that the British delegation consider vessels capable of con- 
version as " potential " fighting ships, and, therefore, as forming 
part of the naval forces of a belligerent. Hence he considers it 
necessary to stipulate clearly that such vessels do not enjoy the 
privileged status granted to the other vessels referred to in the 
project. Article 5 is the essential condition upon which depends 
the adoption of the project as a whole by his delegation. (3 
Proceedings Hague Peace Conferences, Conference of 1907, Car- 
negie Endowment for International Peace, p. 1020.) 

Lord Reay had earlier said " vessels built with a view 
to war can not escape the treatment to which warships are 
subjected." (Ibid., p. 941.) In this plenary conference 
it was explained that it was not the purpose to give ex- 
emptions to merchant ships intended for conversion into 
vessels of war but that these " should be expressly left 
out of the proposed provisions and kept under the juris- 
diction of the present law. That is the object of article 
5, according to which the build of the ships in question 
should serve to indicate their ultimate purpose." (Ibid., 
vol. 1, p. 250.) 

As article 14 distinctly states the purpose of stiffening 
the decks as " for the purpose of converting such ships 
into vessels of war," manifestly such vessels would not 
have the advantages of the days of grace as in the class 
of regular merchant vessels, and it can scarcely be imag- 



ined that a belligerent would accord to such vessels the 
same privileges in other respects. 

Naval unit. — Questions have long been raised as to 
what constitutes a naval unit. With the Declaration of 
Paris of 1856 by which a blockade " in order to be bind- 
ing, must be effective — that is to say, maintained by a 
force sufficient really to prevent access to the coast of the 
enemy " — there came questions as to what force w T as 
essential to make it sufficient under the terms. The Su- 
preme Court of the United States in 1899 in the case of 
The Olinde Rodrigues (174 U. S. 510) said that "what 
might be sufficient force was necessarily left to be deter- 
mined according to the particular circumstances." Gen- 
eral Order 492 of the Secretary of the Navy, June 20, 
1898, had stated that there must be maintained "a force 
sufficient to render ingress to or egress from the port 
dangerous." Early decisions had used similar expres- 
sions as " exposure to certain danger," " dangerous to 
attempt to enter it," " attended with evident danger," 
" incurring risk." The court would not allow the cap- 
tured vessel to plead that blockade was not legally 

The question as to what might constitute a blockading 
force has been raised from time to time and was par- 
ticularly considered at the London Naval Conference, 
1908-9. The official report on the Declaration of London, 
which declaration has not been ratified, said : 

When a government decides to undertake blockading operations 
against some part of the enemy coast it assigns a certain number 
of warships to* take part in the blockade and intrusts the com- 
mand of these to an officer whose duty is to insure by this 
means the effectiveness of the blockade. The commander of the 
naval force thus formed distributes the ships placed at his dis- 
posal according to the configuration of the coast and the geo- 
graphical position of the blockaded places and gives each ship 
instructions as to the part which she has to play, and especially 
as to the zone intrusted to her surveillance. It is all of the 
zones of surveillance together, organized in such manner that the 
blockade is effective, that form the radius of action of the 
blockading naval force. 


The radius of action so understood is closely connected with 
the effectiveness of the blockade, and also with the number of 
ships employed on it. 

Cases may occur in which a single ship will be enough to main- 
tain a blockade effective — for instance, at the entrance of a port 
or at the mouth of a river with a small estuary — on condition 
as circumstances allow the blockading ship to stay near enough 
to the entrance. In that case the radius of action is itself near 
the coast. But, on the contrary, if circumstances force her to 
remain far off, it may be that one ship would not be enough to 
secure effectiveness, and to maintain this it will then be necessary 
to add other ships. (1909 N. W. C, International Law Topics, p. 
49; Br. Parliamentary Papers, Misc. No. 5 [1909], Cd. 4555, p. 

This report and other opinions seem to indicate that 
the forces engaged in a single operation or under the 
command of one officer detailed for the operation would 
be regarded as a unit. The " forces raised or to be 
raised " might be under a general command but would 
not be a unit in the sense here used unless engaged in 
one operation against a single objective. Certainly the 
ships under a single command and engaged in a single 
operation would be regarded as a unit. 

Questions relating to the distribution of prize money 
have often given rise to differences of opinion as to what 
vessels may share as taking part in a capture. " Vessels 
in sight " were often regarded as participating. During 
the World War such questions naturally came before the 
Allies. A convention between France and Great Britain, 
agreed upon in 1914 and later acceded to by Italy, 
provided : 

Art. 4. When a capture shall be made by a cruiser of one of 
the allied nations in the presence and in the sight of a cruiser 
of the other, such cruiser having thus contributed to the intimi- 
dation of the enemy and encouragement of the captor, the adjudi- 
cation thereof shall belong to the jurisdiction of the actual captor. 

Art. 5. In case of condemnation under the circumstances de- 
scribed in the preceding articles : 

1. If the capture shall have been made by vessels of the allied 
nations whilst acting in conjunction, the net proceeds of the 
prize, after deducting the necessary expenses, shall be divided 


into as many shares as there were men on board the capturing 
vessels, without reference to rank, and the shares of each ally as 
so ascertained shall be paid and delivered to such person as may 
be duly authorized on behalf of the allied government to receive 
the same, and the allocation of the amount belonging to each 
vessel shall be made by each government according to the laws 
and regulations of the country. 

2. If the capture shall have been made by cruisers of one of 
the allied nations in the presence and in sight of a cruiser of 
the other, the division, the payment, and the allocation of the net 
proceeds of the prize, after deducting the necessary expenses, shall 
likewise be made in the manner above mentioned. (1917 N. W. C, 
International Law Documents, p. 146.) 

The capture of a vessel under such conditions, while 
regarded as a joint capture, is not the act of a force under 
a single command but of a force constructively engaged 
in a single operation resulting in the capture of the prize. 

American proposal* 1916. — The Secretary of State 
made to the ambassadors of the Governments of Great 
Britain and allied powers in 1916 a proposal in regard 
to a modus vivendi as to submarines and armed merchant 
vessels. In this communication he. said: 

Your excellency will understand that in seeking a formula or 
rule of this nature I approach it of necessity from the point of 
view of a neutral, but I believe that it will be equally efficacious in 
preserving the lives of all noncombatants on merchant vessels of 
belligerent nationality. 

My comments on this subject are predicated on the following 
propositions : 

1. A noncombatant has a right to traverse the high seas in a 
merchant vessel entitled to fly a belligerent flag and to rely upon 
the observance of the rules of international law and principles 
of humanity if the vessel is approached by a naval vessel of 
another belligerent. 

2. A merchant vessel of enemy nationality should not be at- 
tacked without being ordered to stop. 

3. An enemy merchant vessel, when ordered to do so by a 
belligerent submarine, should immediately stop. 

4. Such vessel should not be attacked after being ordered to 
stop unless it attempts to flee or to resist, and in case it ceases to 
flee or resist the attack should discontinue. 

5. In the event that it is impossible to place a prize crew on 
board of an enemy merchant vessel or convoy it into port, the 


vessel may be sunk, provided the crew and passengers have been 
removed to a place of safety. (1910 U. S. For. Kel., Sup., p. 

The American proposal, in the opinion of the French 
ambassador, seemed to raise questions that were not easy. 
The ambassador said: 

The chief difficulty will be what guaranty shall we have that 
the contemplated agreements, which are simply a reenactment of 
old established rules, will henceforth be observed? Shall we have 
yours? If so, well and good, but I doubt you will undertake such 
a risky thing. * * * The question of the place of safety is 
also a difficult one. Up to now the Germans have understood by 
this the packing of people in small boats abandoned in the open 
sea where they have died by the hundred, more than probably a 
cruel, lingering death, many of them. The German note concern- 
ing the Fnje announces the abandonment of this particular part 
of the frightful system of that nation. But it is not clear what or 
whom this applies to. It seems as if only ships under the Amer- 
ican flag were to benefit by it. If you could let me know how you 
interpret the promise, I should be very thankful and it might be 
of real use. (Ibid. p. 149.) 

The proposal of the United States did not seem reason- 
able to the British Government, and the American ambas- 
sador in London reported that the pressing of the Amer- 
ican proposal would be regarded by the Allies as jdeld- 
ing to German influences and as more or less unfriendly 

German attitude, 1916. — On February 4, 1916, just a 
year after the announcement of submarine warfare by 
Germany, the German ambassador in Washington, in a 
communication to the Secretary of State, said that the 
German submarine war against England's commerce at 
sea " is conducted in retaliation of England's inhuman 
war against Germany's commercial and industrial life. 
It is generally recognized as justifiable that retaliation 
may be employed against acts committed in contraven- 
tion of the law of nations. Germany is enacting such 
retaliation because it is England's endeavor to cut off all 
imports from Germany by preventing even legal com- 
merce of the neutrals with her and thereby subjecting 


the German population to starvation. In answer to 
these acts Germany is making efforts to destroy Eng- 
land's commerce at sea, at least as far as it is carried 
on by enemy vessels. If Germany has notwithstanding 
limited her submarine warfare, this was done in view of 
her long-standing friendship with the United States and 
in view of the fact that the sinking of the Lusitania 
caused the death of citizens of the United States. 
Thereby the German retaliation affected neutrals which 
was not the intention, as retaliation must not aim at 
other than enemy subjects." (1916, U. S. For. Rel. Sup.. 
p. 157.) 

Armed merchant vessels and submarines. — During the 
World War, 1914—1918, there was much discussion of the 
relations of armed merchant vessels and submarines. It 
was readily admitted that a shell from a gun of even 
small caliber might destroy a submarine. Some states 
have permitted arming of merchant vessels with guns not 
exceeding 6 inches. The right of an enemy merchant 
vessel to resist by force visit and search has long been 
recognized and was formerly grounded upon the need 
of protection against pirates and privateers. In the days 
just before the World War British officials had argued 
that " the proper reply to an armed merchantman is 
another merchantman armed in her own defense," and 
that " surely these ships will be quite valueless for the 
purpose of attacking armed vessels of any kind." In 
1914 Mr. Churchill, First Lord of the British Admiralty, 
said : " These are armed solely for defensive purposes. 
Their guns are mounted in the stern and can fire only on 
the pursuer." (59 Parliamentary Debates, Commons, 
1914, p. 1925.) In 1916 the German Foreign Office com- 
municated to the American ambassador in Germany what 
purported to be copies of instructions to British mer- 
chant vessels, found on board the English steamer Wood- 

In no circumstances is this paper to be allowed to fall into 
the hands of the enemy. 


This paper is for the master's personal information. It is not 
to be copied, and when not actually in use is to be kept in safety 
in "a place where it can be destroyed at a moment's notice. 

Such portions as call for immediate action may be communi- 
cated verbally to the officers concerned. 

April, 1915. 

instructions regarding submarines applicable to 
vessels carrying a defensive armament 

1. Defensively armed vessels should follow generally the instruc- 
tions for ordinary merchant ships. 

2. In submarine waters guns should be kept in instant readi- 

3. If a submarine is obviously pursuing a ship by day, and it is 
evident to the master that she has hostile intentions, the ship 
pursued should open fire in self-defense, notwithstanding the sub- 
marine may not have committed a definite hostile act, such as 
firing a gun or torpedo. 

4. In view of the great difficulty in distinguishing a friend 
from an enemy at night, fire should not be opened after dark 
unless it is absolutely certain that the vessel fired at is hostile. 

5. Before opening fire the British colors must be hoisted. 

It is essential that fire should not be opened under neutral 

6. If a defensively armed vessel is pursued by a submarine the 
master has two alternatives: 

(a) To open fire at long range immediately it is certain that 
the submarine is really in pursuit. 

(&) To retain fire until the submarine has closed to a range, 
say, 80O yards, at which fire is likely to be effective. 

In view of the very great difficulty of distinguishing between 
friendly and hostile submarines at long range (one British' sub- 
marine has already been fired at by a merchant vessel which 
erroneously supposed herself to be pursued by the submarine), it 
is strongly recommended that course (6) should be adopted by all 
defensively armed ships. 

7. A submarine's flag is no guide to her nationality, as Ger- 
man submarines frequently fly British colors. 

8. Vessels carrying a defensive armament and proceeding to 
neutral ports must not be painted in neutral colors or wear a 
neutral flag. 

9. It is recommended that in neutral ports, particularly those 
of Spain, the armament should be concealed as far as possible. 


A canvas cover is recommended for this purpose. (1916 U. S. 
For. Rel., Sup., p. 196.) 

The German ambassador handed to the Secretary of 
State of the United States on January 7, 1916, the follow- 
ing statement : 

(1) German submarines in the Mediterranean had from the 
beginning orders to conduct cruiser warfare against enemy mer- 
chant vessels only in accordance with general principles of inter- 
national law, and in particular, measures of reprisal, as applied 
in the war zone around the British Isles were to be excluded. 

(2) German submarines are therefore permitted to destroy 
enemy merchant vessels in the Mediterranean; i. e., passenger as 
well as- freight ships as far as they do not try to escape or offer 
resistance, only after passengers and crews have been accorded 

(3) All cases of destruction of enemy merchant ships in the 
Mediterranean in which German submarines are concerned are 
made the subject of official investigation and, besides, submitted 
to regular prize court proceedings. In so far as American inter- 
ests are concerned, the German Government will communicate 
the result to the American Government. Thus, also, in the 
Persia case if the circumstances should call for it. 

(4) If commanders of German submarines should not have 
obeyed the orders given to them, they will be punished; further- 
more, the German Government will make reparation for damage 
caused by death of or injuries to American citizens. (1916 U. S. 
For. Rel., Sup., p. 144.) 

Submarines and the Washington Conference on Limi- 
tation of Armaments, 1921-22. — In the early meetings of 
the Conference on the Limitation of Armaments, 1921-22, 
there had been discussion as to the use or abolition of 
submarines. There was also an understanding that if 
the use of submarines was not prohibited rules regulating 
their use would later be introduced. 

Mr. Root said that the resolutions he was about to read were 
based on two lessons taught by the Great War. One fact which 
seemed very clear was that mere agreements between govern- 
ments, rules formulated among diplomats in the course of the 
scientific development of international law, had a very weak 
effect upon belligerents when violation would seem to aid in the 
69574—31 3 


attainment of the great object of victory. This has been clearly 
demonstrated in the war of 1914-1918. 

Another fact established by the war was that the opinion of 
the people of civilized nations had tremendous force and exer- 
cised a powerful influence on the condition of the belligerents. 
The history of propaganda during the war had been a history of 
an almost universal appeal to the public opinion of mankind, 
and the result of the war had come largely as a response. 

The public opinion of mankind was not the opinion of scientific 
and well-informed men but of ill-informed men who formed 
opinions on simple and direct issues. If the public could be con- 
fused, public opinion was ineffective ; but if the public was clear 
on the fundamentals of a question, then the opinion of mankind 
was something which no nation could afford to ignore or defy. 

The purpose of the resolutions he was about to read was to 
put into such simple form the subject which had so stirred the 
feelings of a great part of the civilized world that the man in 
the street and the man on the farm could understand it. 

The first resolution, Mr. Root said, aimed at stating the ex- 
isting rules, which, of course, were known to the committee, 
but which the mass of people did not know, in such a form that 
they would be understood by everyone. 

Mr. Root then read the following: 

" I. The signatory powers, desiring to make more effective the 
rules adopted by civilized nations for the protection of the lives 
of neutrals and noncombatants at sea in time of war, declare that 
among those rules the following are to be deemed an established 
part of international law : 

" 1. A merchant vessel must be ordered to stop for visit and 
search to determine its character before it can be captured. 

"A merchant vessel must not be attacked unless it refuses to 
stop for visit and search after warning. 

"A merchant vessel must not be destroyed unless the crew and 
passengers have been first placed in safety. 

" 2. Belligerent submarines are not under any circumstances 
exempt from the universal rules above stated ; and if a sub- 
marine can not capture a merchant vessel in conformity with 
these rules the existing law of nations requires it to desist from 
attack and from capture and to permit the merchant vessel to pro- 
ceed unmolested. 

" The signatory powers invite the adherence of all other civil- 
ized powers to the foregoing statement of established law to the 
end that there may be a clear public understanding throughout 
the world of the standards of conduct by which the public opinion 
of the world is to pass judgment upon future belligerents." 


This, Mr. Root said, was a distinct pronouncement on the Ger- 
man contention during the war in regard to the conflict between 
the convenience of destruction and the action of a belligerent 
under the rules of international law. (Conference on Limitation 
of Armament, 1921-1922, p. 594.) 

The preamble of Mr. Root's resolution was in part em- 
bodied in the preamble of the treaty as finally adopted by 
the conference and in part embodied in Article I. The 
proposed treaty, which was not ratified, clearly states that 
it desires "to make more effective the rules adopted by 
civilized nations," and in Article III provides penalties 
for failure to observe these rules. These penalties were 
to be applicable not alone to those in the submarine serv- 
ice but to all branches or to "any person in the service 
of any power." The ratification of this treaty would have 
made the rules and the sanction general. 

The preamble of the proposed treaty stated that it is 
the desire of the five powers signing the treaty " to make 
more effective the rules adopted by civilized nations for 
the protection of the lives of neutrals and noncombatants 
at sea in time of war." 

Article I, if ratified, would for the five powers declare 
certain " rules adopted by civilized nations," and that 
" the following are to be deemed an established part of 
international law." 

The statements in Article I are not necessarily correct 
statements of the law, even though so declared by the five 
powers, as is evident from Articles II and III, which, if 
the rules are adopted, unnecessarily invite assent of other 
civilized powers, because, if "established," as stated in 
the English text of Article I, or, as " forming a part of," 
as stated in the French text, no assent would be necessary, 
but could be assumed. 

Neutrals and noncombatants may be on either belliger- 
ent or neutral merchant vessels. In Article I (1) there 
is no distinction made as to whether the merchant ves- 
sel is under neutral or belligerent flag, and there is un- 
questionably a difference in the permissible treatment of 
vessels under neutral and under belligerent flags. 


An enemy merchant vessel under existing international 
law may be seized without previous orders to submit to 
visit and search. Article I of the treaty provides that a 
merchant vessel, without distinction as to flag, " must be 
ordered to submit to visit and search before it can be 
seized," thus introducing a new limitation applying to all 
vessels of war. Further, it has been common to seize 
even neutral merchant vessels without visit and search 
if evidence in possession of the vessel of war is sufficient 
to warrant seizure, on orders from the Government, or on 
suspicion, at the risk of the seizing party, which might 
be contrary to the provision of Article I. 

Article I does not, however, necessarily require visit 
and search before seizure, but does require that the vessel 
" be ordered to submit to visit and search to determine 
its character before it can be seized." Often it is not the 
character of the vessel that is in question but the nature 
of the cargo, the destination, etc. A strict interpretation 
places a still further limitation upon the action of the 
seizing vessel that the visit and search be to determine 
the character of the merchant vessel, and in the division 
(2) this is stated to be among " the universal rules," non- 
conformity to which requires that the vessel be allowed to 

The general implication from the wording is that the 
rules of Article I are to be deemed to be established " for 
the protection of lives of neutrals and noncombatants," 
whereas the rules in regard to visit and search have been 
developed primarily for the dealing with property rather 
than for protection of life. 

While the original proposition of Mr. Root stated that 
the merchant vessel " must be ordered to stop for visit 
and search to determine its character before it can be 
captured," in the final text this w^ord " captured " was 
changed to "seized." Mr. Hanihara had suggested the 
change from " capture " to " seize." 

The original proposition of Mr. Root also stated : "A 
merchant vessel must not be attacked unless it refuse to 

DISCUSSION, 19 21-19 22 29 

stop for visit and search after warning." To this was 
later added the words, " or to proceed as directed after 

In the next clause there was no change. 

In the last paragraph numbered (2), the word "cap- 
ture " at the end of the paragraph was changed to " seiz- 
ure." The word " capture " in the second clause was 
not changed. 

Mr. Root at the meeting of December 29, 1921, speak- 
ing of Resolution I, said : 

This article did not purport to be a codification of the laws of 
nations as regards merchant vessels, or to contain all the rules. 
It said that the following were to be deemed among the existing 
rules of international law. 

Speaking further of these rules of Resolution I, Mr. 
Root said : " The public opinion of the world said that 
the submarine was not under any circumstances exempt 
from the rules above stated ; and if so, a submarine could 
not capture a merchant vessel." Mr. Root said : 

Resolution I also explained in authorized form the existing law 
and could be brought forward when the public asked what changes 
were proposed. (Conference on the Limitation of Armament, 
p. 618.) 

Sir John Salmond, while not doubting the substantial 
accuracy of the resolutions proposed by Mr. Root, re- 
garded them as not free from ambiguities and formal de- 
fects. He asked whether under Resolution I, stating 
that " c a merchant vessel must not be destroyed unless 
the crew and passengers had been first placed in safety,' 
was this intended to give absolute immunity from attack 
to the merchant ship unless the crew and passengers were 
first placed in safety, even although the ship had refused 
to stop on being warned? Read literally, this would be 
the effect of the rule." 

Senator Lodge said : " The rules laid down by Mr. 
Root, especially in Resolution I, were elementary. Any- 
one who had read a textbook of international law knew 
them." (Ibid. p. 620.) 


Mr. Hughes said : 

Such a declaration as the one proposed in the first resolution 
would go to the whole world as an indication that, while the 
committee could not agree on such limitation, there was no dis- 
agreement on the question that submarines should never be used 
contrary to the principles of law governing war. The adoption of 
the resolution might, furthermore, avoid misunderstanding on the 
part of those who were looking to the conference with great hope. 
It certainly could not be considered as a vain declaration, after 
the experiences with submarines which the powers there repre- 
sented had had and the feelings engendered by those experiences, 
to declare in the most precise terms that the rules of international 
law should be observed. He believed that such a declaration 
would be of the greatest value. (Ibid. p. 636.) 

When the drafting subcommittee reported on January 
5 on the Resolutions I and II, which subsequently became 
Articles I and II of the treaty, Mr. Root stated that — 

the subcommittee had agreed unanimously on these two resolu- 
tions, but that Senator Schanzer had requested that the following 
entries be made in the minutes of the subcommittee (regarding 
Resolution I) : 

"It is declared that the meaning of article 2 is as follows : 
Submarines have the same obligations and the same rights as 
surface craft." 


" With regard to the third paragraph of article 1, it is under- 
stood that a distinction is made between the deliberate destruc- 
tion of a merchant vessel and the destruction which may result 
from a lawful attack in accordance with the rules of the second 
paragraph. If a war vessel, under the circumstances prescribed 
in paragraph 2 of article 1, lawfully attacks a merchant vessel, it 
can not be held that the war vessel, before attacking, should put 
the crew and passengers of the merchant vessel in safety." 
(Ibid., p. 686.) 

Senator Schanzer stated, in addition, that the Italian delega- 
tion understood the term " merchant vessel " in the resolution to 
refer to unarmed merchant vessels. (Ibid., p. 688.) 

As Mr. Root had stated of this first article : " The first 
was a declaration of existing law and created nothing, 
merely certifying to what existed." (Ibid, p. 640), and 
as Sir John Salmond, also a distinguished jurist, has said 
he did not find the resolutions " free from ambiguities," 


and as the Japanese delegation, as well as the Italian, had 
raised questions, there might be proper room for doubt 
as to whether the first resolution clearly stated the exist- 
ing law. 

There was also a difference of opinion between Senator 
Schanzer and Lord Lee as to armed merchant vessels. 

Lord Lee said he would now develop his second point. He was 
not sure if he had understood Senator Schanzer to say that 
the Italian delegation only accepted Resolution I on condition 
of a drastic change in international law under which merchant- 
men would not have the right to be armed against attack from 
any quarter. The arming of merchant ships was not a purely 
British practice; it was recognized in the Italian Code of 1877, 
which laid down that a merchant ship which was attacked might 
be ordered to defend itself and even to seize the enemy. He did 
not suppose that Senator Schanzer proposed to destroy the 
privilege allowed the merchantmen to defend themselves. 

Senator Schanzer said that he would like to observe, with re- 
spect to what Lord Lee had said, that a limitation of the arma- 
ment of auxiliary vessels had already been fixed. It had been 
agreed that they might not carry guns of more than 8-inch caliber. 
No rules, however, had been established governing the principles 
to be applied to merchant vessels, nor had they been forbidden 
to carry armament above a certain caliber. This omission might 
be dangerous, and even change their character. There were mer- 
chant vessels of 45,000 tons which might carry armament even 
heavier than 8 inches. Were these merchant vessels or not? 
The committee had established that a submarine should not 
attack a merchant vessel except in conformity with a resolution 
which had been adopted. Yet a merchant ship with guns was a 
war vessel. Might not a cruiser attack such a vessel? This 
was a point which Senator Schanzer believed should be cleared 
up. He said that he could not agree that a merchant vessel, 
even one armed with 6-inch guns, had rights which a surface 
cruiser must respect. It was aimed to lay down rules for the 
advantage of merchant vessels, not of vessels of war. He said 
that he felt that a declaration was necessary concerning this 

Lord Lee said he thought the difference between Senator 
Schanzer and himself was not really so great as appeared. Sen- 
ator Schanzer appeared to him, perhaps, to have confused two 
things. It had been considered absurd to limit the armament of 
light cruisers and not to impose any limitation on the armament 
of merchant ships. When this question, which was a purely 


technical one, came to be discussed he would be willing to apply 
the principle that the armed merchant cruiser must not be more 
powerful than the light cruiser. He understood, however, that 
Senator Schanzer had said that merchant ships must not be 
armed at all. That would involve an alteration of international 
law which the British Empire delegation could not possibly 

Senator Schanzer said he did not deny that under the existing 
rules of international law a merchant vessel might properly carry 
a limited armament for defensive purposes, but he wished to say 
that the Italian interpretation of the term " merchant vessel " 
took into account this limitation. He therefore repeated that 
the Italian interpretation was in accord with his preceding 
declaration and with the existing rules of international law. 

The chairman stated that he supposed that this subject, which 
presented endless opportunities for exposition, might be left with 
the suggestion that under this resolution merchant vessels re- 
mained as they now stood under the existing rules of law, with 
all their rights and obligations ; that the resolution then under- 
took to state what might be done by submarines in relation to 
merchant vessels thus placed. The chairman thought it hardly 
necessary that the committee should enter into a discussion of 
the question. Although he had no desire to preclude discussion 
of any sort, yet he hardly thought it necessary to enter into a 
review of all the rules of international law as to merchant vessels 
and their rights and obligations. He assumed that all the repre- 
sentatives present accepted the proposition that merchant vessels, 
as merchant vessels — a category well known — stood where they 
were under the law, and that this resolution defined the duties 
of submarines with respect to them. 

The chairman thereupon put Resolution I to vote. 

The chairman assented on behalf of the United States. 

Mr. Balfour assented for the British Empire. 

Mr. Sarraut said that the French delegation would give its 
full adherence to Resolution I, but that an interesting discussion 
had just taken place, the results of which he had not quite 
understood. He suggested that if Senator Schanzer's statements 
were not attached to the resolutions they should be recorded in 
the minutes. 

The chairman replied that the question was on the adoption of 
of the resolution and asked whether France assented. 

Mr. Sarraut replied that it did. 

Senator Schanzer, speaking for Italy, and Mr. Hanihara, speak- 
ing for Japan, assented. 

The chairman stated that Resolution I was unanimously 
adopted. (Ibid., p. 690-694.) 


By Article II all other civilized powers were invited 
to assent to the rules of Article I as being a statement of 
established law, so that "there may be a clear public 
understanding throughout the world of the standards of 
conduct by which the public opinion of the world is to 
pass judgment upon future belligerents." 

In speaking of Article III, which makes violation of 
existing law piracy, Mr. Boot said : " They were not mak- 
ing law, they were making a declaration regarding ex- 
isting law, and that necessitated no limitation at all to 
the powers that were here." (Ibid., p. 720.) It is diffi- 
cult to determine under what authority five powers, how- 
ever humane, might have presumed to decide for other 
powers the penalties for acts when they have not been 
consulted upon the formulation of the law defining these 

In voting on Article III — 

Senator Schanzer said that he accepted in the name of the 
Italian delegation the new formula as worked out by Mr. Root 
and Sir John Salmond, which gives entire satisfaction, as its 
wording had the effect of extending the sanctions of trial and 
punishment to all persons violating the rules of law laid down 
in the first resolution, without distinction. 

The chairman asked whether any further discussions were de- 
sired. No reply being made, he said that the matter would be 
put to vote, whereupon the delegations of the United States of 
America, the British Empire, France, and Italy assented. 

Mr. Hanihara said that before speaking for the Japanese dele- 
gation he would like to be enlightened as to the exact meaning of 
the words " punishment as if for an act of piracy." 

The chairman said he assumed the phrase to mean that viola- 
tion of the laws of war, thus declared, should be treated as 
amounting to an act of piracy and that the person violating the 
laws would be subject to punishment accordingly. 

Mr. Root interposed that such a person would not be subject to 
the limitations of territorial jurisdiction. The peculiarity about 
piracy was that, though the act was done on the high seas and 
not under the jurisdiction of any particular country, nevertheless 
it could be punished in any country. That was the really impor- 
tant point. (Ibid., p. 728.) 


In presenting the treaty in its final form to the fifth 
plenary session, February 1, 1922, Mr. Root said : 

You will observe that this treaty does not undertake to codify 
international law in respect of visit, search, or seizure of 
merchant vessels. What it does undertake to do is to state the 
most important and effective provisions of the law of nations in 
regard to the treatment of merchant vessels by belligerent war- 
ships, and to declare that submarines are under no circumstances 
exempt from these humane rules for the protection of the life of 
innocent noncombatants. 

It undertakes further to stigmatize violations of these rules, 
and the doing to death of women and children and noncombatants 
by the wanton destruction of merchant vessels upon which they 
are passengers, as a violation of the laws of war which, as be- 
tween these five great powers and all other civilized nations who 
shall give their adherence thereto, shall be henceforth punished 
as an act of piracy. (Ibid., p. 268.) 

The statement that the following is an established part 
of international law, viz, "A merchant vessel must be 
ordered to submit to visit and search to determine its 
character before it can be seized " is not in accord with 
the facts at present or prior to the war. 

Certainly this was not the rule in regard to enemy mer- 
chant vessels which might be seized as such without 
orders to submit to visit and search. The Japanese and 
other rules prescribe: "All enemy vessels shall be cap- 
tured." Visit and search of enemy merchant vessels was 
to avoid violation of any neutral rights. 

A neutral merchant vessel might be seized at any time 
outside of neutral jurisdiction, but in such case the state 
making the seizure assumed all risk, and visit and search 
was to avoid risk. If a neutral merchant vessel was 
known to the belligerent to have violated blockade, car- 
ried contraband, or to have engaged in unneutral service, 
it could be seized without being ordered to submit to 
visit and search. 

This visit and search may not be solely to determine 
the character of the ship, for this may be known already, 
but to determine its destination, cargo, etc. 


In 1799, Sir William Scott, in the case of the Maria, 
said : 

That the right of visiting and searching merchant ships upon 
the high seas, whatever be the ships, whatever be the cargoes, 
whatever be the destinations, is an incontestable right of the 
lawfully commissioned cruisers of a belligerent nation. (1, C. 
Robinson's Admiralty Reports, 340.) 

This statement did not mean that the merchant vessel 
had a right to demand that it should be ordered to submit 
to visit and search before seizure, but that the belligerent 
cruiser had a right to visit and search, and the belligerent 
cruiser also had, and has often exercised, the right of 
seizure without visit and search. The visit and search 
has been resorted to to avoid liability of making an il- 
legal seizure. If a cruiser cares to take the. risk of illegal 
seizure it may do so at any time, without visit and search, 
under the law existing in 1922 and until such treaty 
should be generally ratified. 

The next clause provides: 

A merchant vessel must not be attacked unless it refuse to 
submit to visit and search after warning, or to proceed as directed 
after seizure. (Conference on Limitation of Armament, p. 1608.) 

The French version of this is equally official with the 
English, but the idea is more nearly in accord with the 

Un navire de commerce ne peut etre attaque que si, aprds 
mise en demeure, il refuse de s'arreter pour se soumettre a la 
visite et k la perquisition, ou si, apres saisie, il refuse de suivre 
la route qui lui est indiquee. 

It is, however, not a " refusal " to come to for visit 
and search, but merely a failure to come to that renders 
the vessel liable under nearly all regulations. 

The word " refuse " is, however, a fortunate one, as 
under this phraseology liability under the Kirkwall prac- 
tice would not easily arise. A vessel might be directed 
to proceed to Kirkwall, or some other port, and might 
not "refuse," but might after a time depart from the 


route indicated. As this clause, " or to proceed as di- 
rected after seizure," did not occur in the original draft 
it may be inferred that it was introduced to gain recog- 
nition of an extension of the Kirkwall practice, which 
certainly was not, and is not, " an established part of 
international law." If the seizing vessel accompanies 
the seized merchant vessel or puts a prize crew on board, 
then the law is as stated. 

The paragraph stating: "A merchant vessel must not 
be destroyed unless the crew and passengers have been 
first placed in safety," manifestly is not intended to be a 
general prohibition, because the preceding paragraph 
permits by implication destruction under certain condi- 

This proposed treaty of 1921-22 in relation to the use 
of submarines and noxious gases in warfare failed of 
adoption and the regulation of the use of submarines was 
left for later determination. 

American advisory committee, Washington Conference 
on the Limitation of Armament. — A subcommittee in- 
vestigating and making a report in regard to submarines 
to the American advisory committee at the Washington 
Conference, 1921, said : 

The rules of maritime warfare require a naval vessel desiring 
to investigate a merchant ship first to warn her by firing a shot 
across her bow, or in other ways, and then proceed with the ex- 
amination of her character, make the decision in regard to her 
seizure, place a prize crew on her, and, except under certain ex- 
ceptionable circumstances, bring her into port, where she may be 
condemned by a prize court. * * * 

Assuming that a merchant ship may be halted by a submarine 
in a legitimate fashion, it becomes difficult because of limited 
personnel for the submarine to complete the inspection, place a 
prize crow on board, and bring her into port. It is also difficult 
for her to take the passengers and crew of a large prize on board 
should circumstances warrant sinking the vessel. However, these 
remarks are applicable to small surface crafts as well. ( Confer- 
ence on the Limitation of Armament, p. 494.) 

Inability to afford place of safety. — Manifestly the ar- 
gument that a vessel of war because weak should have 


special belligerent rights as regards neutrals or opposing 
belligerents has little weight. Professor Hyde, in refer- 
ring to submarines, has said : 

Mere incapacity of a naval submarine to offer a place of refuge 
on its own decks does not justify a disregard of the safety of the 
persons aboard the enemy merchantman which has surrendered 
or obeyed a signal to stop. It indicates rather a limitation of the 
right to destroy the ship until by some process the safety of its 
occupants has been assured. Should a small surface craft, such 
as a typical destroyer, or a naval vessel even more diminutive, 
fall in with an enemy passenger liner having 2,000 persons aboard, 
the inability of the former to offer a place of refuge to a major- 
ity of those persons, or to spare an adequate prize crew, would 
not in itself be deemed to justify the demand that the occupants 
of the liner take to the boats, or otherwise jeopardize their 
safety in order to permit the destruction of the vessel on which 
they w r ere carried. The submarine is subject to the same duty. 
(2 Hyde. International Law, p. 482.) 

Summons. — In many of the old treaties it is stipulated 
that a visiting vessel shall not come nearer to the visited 
vessel than a cannon shot, though some prescribe half a 
cannon shot. The requiring that the national flag should 
be flown when firing a gun in action was general. These 
rules were developed when the range of guns was short, 
and the rules were not universal though they might be 
regarded as general. With the increase in range of 
guns, it is not possible to send with safety and conven- 
ience a visiting party even half the distance which a shot 
may cover and no specified distance is now required. 
The reason for the early precautions have largely passed 
with pirates and privateers. While the summoning or 
affirming gun is often fired, other methods are equally 
valid. The purpose of the summoning gun was to make 
known to the summoned vessel that the summoning ves- 
sel desired her to come to and there was the implied 
threat that force would be used to bring the vessel to if 
the summons was manifestly disregarded and this could 
lawfully be done. Any other method of effecting sum- 
mons would be equally lawful, as by signal or otherwise, 


but, of course, the summons must be received and must 
be understood. If certainly received and understood, the 
consequences of disregarding the summons would be the 
same whatever the means of communication. 

Detention. — The terms capture, seizure, and detention 
are not uniformly applied or interpreted. Capture and 
seizure are often used interchangeably. In general it is 
maintained that a vessel of war should interfere as little 
as possible with neutral commerce and that the exercise 
of visit and search should not be made unnecessarily bur- 
densome. If on visit and search no good ground for sus- 
picion that the vessel is liable to capture is found, 
formerly it was held that the vessel should be allowed 
to proceed. 

During the World War it was argued on various 
grounds, size, state of sea, danger from submarines, 
methods of shipment of cargo, etc., that the visit and 
search at the place where the vessel is summoned is not an 
adequate safeguard for belligerents. Detention on the 
ground of suspicion based on irregular papers or other 
evidence arising from the visit and search at the place 
where the vessel is brought to has been uniformly ap- 
proved, but the adequacy of the grounds for suspicion 
might be contested. Cases had arisen where vessels were 
detained and taken from the place of bringing to when 
search had been interrupted by storm, threatened attack 
by the enemy, or force majeure. 

A somewhat extreme interference arose in case of the 
Montana in 1915. The statement of the case as reported 
in the decision by His Majesty's Commercial Court at 
Malta in Prize is as follows : 

Action by the Archipelago American Steamship Co., the owners 
of the steamship Montana, against the commanding officers of 
H. M. S. Harrier and H. M. S. Triad, claiming damages for the 
detention of their vessel. 

On April 15, 1915, the Montana left the Piraeus, having on board 
90,000 kilos of common soda consigned to Vourla, in Turkey. 
Before accepting the said consignment the master and ship's 


agent communicated with the British Legation at Athens and 
received an assurance from the British Minister that common 
soda was not contraband and might safely be carried to the pro- 
posed destination. In the course of her voyage the Montana was 
stopped by H. M. S. Harrier in the Doro Channel and ordered to 
Mudros for examination. The naval authorities at Mudros, hav- 
ing no means at their disposal of analyzing the cargo, sent the 
vessel to Malta, where she arrived on April 22. On April 24 
the Government analyst reported that the cargo did not come 
within the list of sodium substances included in the schedule of 
contraband, and on April 25 the Montana was released and given 
a clearance certificate for Vourla. On May 4 the vessel, after call- 
ing at Chios, was again stopped by H. M. S. Triad, but was 
allowed to proceed to Vourla after her holds had been sealed, 
which prevented the discharge of the cargo. The master of the 
vessel alleged that the commanding officer of the Triad ordered 
him to leave Vourla within 24 hours, but this was denied by the 
naval officer in question. (3 Grant, Br. and Col. Prize cases, 
p. 340.) 

This court decided that " the naval authorities, there- 
fore, acted within their powers in detaining the ship and 
sending her for examination to Malta." 

Later the court states that in regard to sealing the 
cargo to prevent discharging at Vourla " it is impossible 
to define which facts constitute reasonable suspicion, 
as they are so multifarious as to render it impossible to 
give an exhaustive enumeration of all," and also as to the 
contention that the order was against the principles of 
international law, " It does not, however, seem repugnant 
to those principles to hold that the right of visit and 
search includes that of securing such part of the cargo 
which may appear suspicious and of preventing its being 
discharged as at a given port, without actually seizing it." 
The court added : 

Recent developments in the course of the present war have 
clearly shown that it is not possible in all cases to exercise the 
right of visit and search in a satisfactory way owing to the ease 
with which contraband may be concealed in bales, passengers' 
luggage, and other receptacles, especially in large ships, and 
owing to the danger from enemy submarines. 


The claim for damages made by the owners of the- 
Montana was, according to the court, not substantiated, 

Capture. — Just what may be necessary to constitute 
capture may at times be difficult to determine. The 
British judgment by the judicial committee of the Privy 
Council in the case of the Pellw\orm, which in 1917 with 
other ships had passed into Dutch territorial waters be- 
fore they were boarded, gives an opinion as to the nature 
of capture, and the discussion is extended and significant : 

In principle it would seem that capture consists in compelling 
the vessel captured to conform to the captor's will. When that 
is done, deditio is complete, even although there may be on the 
part of the prize an intention to seize an opportunity of escaping 
should it present itself. Submission must be judged by action, or 
by abstention from action ; it can not depend on mere intention, 
although proof of actual intention to evade capture may be evi- 
dence that acts in themselves presenting an appearance of sub- 
mission were ambiguous and did not result in a completed cap- 
ture. The conduct necessary to establish the fact of capture 
may take many forms. No particular formality is necessary — 
La Esperanza. (1 Hag. Aclm., at p. 91.) A ship may be truly 
captured, although she is neither fired on nor boarded — The Ed- 
ward and Mary — if, for example, she is constrained to lead the 
way for the capturing vessel under orders, or to follow her lead, 
or directs her course to a port or other destination, as commanded. 
If she has to be boarded, she is at any rate taken as prize when 
resistance has completely ceased. It was contended before their 
lordships by counsel for the Crown that hauling down the flag 
was conclusive in the present case, or, at least, was conclusive 
when taken in conjunction with stopping the engines as ordered. 
It was said to be an unequivocal act of submission, as eloquent 
as the words " I surrender " could have been, an act which could 
not be qualified by any intention which did not find expression. 
in action. This is to press The Reoeekah beyond what it will 
bear, for there the facts showed, that after the act of formal 
submission by striking colors there was no discontinuance of 
that submission either effectively or at all, whereas Sir William 
Scott intimates that, if any attempt had been made to defeat the- 
surrender he would not have treated the deditio as complete until 
possession was actually taken. It is true that by tradition, when 
ships are engaged in combat, striking the colors is an accepted 
sign of surrender, but to do so without also ceasing resistance 
is to invite and to justify further severe measures by the victori- 


ous combatant. In the case of a merchantman, where the tradi- 
tions of commissioned men-of-war are not of equal application, 
the hauling clown of the flag, like any other sign or act of submis- 
sion, is to be tested by inquiring whether the prize has submitted 
to the captor's will. What a combatant seeks to intimate by acts 
signifying surrender is first and foremost that he ceases to fight 
and submits to be taken prisoner ; what a merchantman intimates 
is that she means to do as she is told, and that the chattel prop- 
erty may be captured in prize, although the seamen in charge of 
it are not made prisoners or placed under personal restraint. In 
the present case, according to evidence given for the Crown, the 
hauling down of their flags by the German steamers was accom- 
panied by a change of course toward the land ; and as it preceded 
any British signal by flag or cannon shot, it was in the circum- 
stances anything but a clear intimation of submission. On the 
contrary, it is obvious that the German ships continued to move 
toward and shortly crossed the 3-mile limit, and that this was 
neither inadvertent nor was incapable of being prevented. They 
had not abandoned the intention of escaping, nor had they ar- 
rested their movement toward the region of safety. They sub- 
mitted just so far as to minimize the risk of being fired on; thej 
disobeyed orders just so far as to insure that the ships would of 
themselves glide or be carried over the line. They were already 
heading toward the territorial waters and desired to obtain what- 
ever advantage might be derivable from getting within them. 
This was why they did not obey the order to alter course to the 
westward. It is shown that they could not have done so. Under 
these circumstances their lordships see no reason to differ from 
Lord Sterndale's conclusion that the vessels were not captured 
until they had entered Dutch waters, for up to that time they 
were endeavoring to escape and were resisting or evading sub- 
mission to the captor's will. (3 Grant, Br. and Col. Prize Cases, 
p. 1053.) 

Classes of ships. — A review of the discussion on priva- 
teering, exemption of private property at sea, conversion 
of merchant vessels into vessels of war, armed merchant 
vessels, subsidized vessels, national merchant marine and 
kindred subjects shows the need of a redefinition of some 
of these classes. This review also shows that the line 
should for purposes of war and for observance of neu- 
trality be on the basis of combatancy. If a vessel is a 
combatant vessel it should be treated as such both by 

69574—31 4 


belligerent and by neutral. While the distinction between 
armament for defensive and offensive purposes was os- 
tensibly made in the World War, in most cases the prac- 
tice reduced to the exercise of judgment by the com- 
mander of the armed vessel as to his ability to sink or 
defeat an approaching vessel. The result was unre- 
stricted maritime warfare with disregard of belligerent 
and neutral rights. 

The desideratum seems to be a clear distinction between 
combatant and noncombatant vessels. Such a distinction 
is necessary both for neutral and belligerent. Clearly a 
vessel of belligerent nationality should be either non- 
combatant or combatant if a neutral is to maintain an 
unquestioned neutrality. The best interests of the bel- 
ligerents would as between themselves be likewise served 
by such definition. Combatant vessels would be liable 
to attack without warning; noncombatant vessels would 
be liable only to visit and search and capture. Noncom- 
batant vessels could be sunk under exceptional circum- 
stances and after personnel had been placed in safety; 
noncombatant vessels belonging to the state would be 
treated as public property. 

Referring to The Hague Convention in regard to days 
of grace in which the term " batiments de guerre " is used 
J. A. Hall says : 

The words " batiments de guerre " are probably intended here 
to cover only fighting ships, and do not include auxiliary vessels 
not employed in acts of aggression. But even so, it is impossible 
to say in general terms what details of construction should be 
taken -to indicate that the vessel is intended to be converted into 
a ship of war, for most fast vessels, such as mail steamers and 
large liners, are easily converted into formidable commerce de- 
stroyers. Indeed, the difficulty will be almost insoluble in the 
future, if the practice of putting special construction into mer- 
chant ships to facilitate their defensive armament in time of war 
becomes general. Difficulties may also arise in the case of vessels 
of smaller size, such as trawlers, which play so important a r61e 
in all mining operations. It is not, however, the capacity of the 
vessel to be converted, but the intention by the Government to 
make such conversion to war uses, which is the test. Each case 


will have to be decided on that very vague and unsatisfactory 
ground, but the fact that the vessel is contained in the navy list 
of its country or is in receipt of a government subsidy should cer- 
tainly be sufficient proof of intention to warrant condemnation. 
Fortunately these problems will seldom confront the naval officer, 
but will be left for the prize court to decide. For if no days of 
grace are granted all enemy vessels should be captured and sent 
in for prize proceedings, for if not liable to condemnation they are 
at any rate subject to detention for the duration of the war. If, 
on the other hand, there is a period of grace, the problem can 
equally well be prevented from harassing the naval officer by 
some such method as that adopted in the British Order in Council 
set out above, namely, the exclusion from the privilege of all ves- 
sels over a certain size or speed or otherwise specially suitable for 
conversion into ships of war. 

Apart from this question of conversion, it is lawful for a naval 
officer, exercising the right of visit and search in time of war, to 
capture and send in for condemnation as prize every enemy mer- 
chant ship which he may meet with outside neutral territorial 
waters after the expiration of any days of grace his government 
may have granted, or, if none are granted, immediately after the 
declaration of war, unless he is satisfied either that she left her 
last port of call before the existence of the war could be known 
there and is still ignorant of it, or that she had sailed from a 
port of her enemy with a passport and has not willfully made 
any material deviation from the course there laid down for her. 
If she has failed to comply with the terms of the passport with- 
out a reasonable excuse, she should be seized. The first excep- 
tion, that of ignorance of the war, did not apply in the Great War, 
as already described, owing to the two belligerents, Germany and 
Russia, having refused to agree to it at The Hague Conference. 
In any war in which the convention was fully in force, unless it 
was decided to exercise the minor right of detention under ar- 
ticle 3, an officer visiting an enemy ship which was ignorant of 
the war, should enter in the ship's log the fact of the visit and 
of the state of war, specifying the date and place of the visit, 
together with the names of his ship and her commanding officer, 
signing the entry with his own name and rank. The visited ves- 
sel will then be liable to be seized as prize, if she thereafter en- 
ters or attempts to enter a port of her enemy, for she is no longer 
in a position to plead ignorance and should make for a place of 
safety. If her destination is a port of her own country, it may be 
necessary, owing to a blockade, to divert her to another port, or 
for other military reasons to prescribe her route, in which case 
any such orders should be also entered in her log. She will then 


be liable to capture and condemnation as prize if she is subse- 
quently discovered to be acting in contravention of such orders 
without reasonable excuse. (J. A. Hall, The Law of Naval War- 
fare, p. 36.) 

Hall also says : 

Hostilities are mainly conducted by the regular navy of a 
state, vessels built and equipped simply and solely for the pur- 
poses of war. They fly a distinctive flag — in the British Navy 
the white ensign. They alone are entitled to attack the enemy, 
to exercise the right of visit and search, or to take prizes. These 
are the fighting ships. Other vessels, such as transports, colliers, 
oil-fuel vessels, tugs, and so forth, required for the numerous sub- 
sidiary nonmilitary services which the working of a great navy de- 
mands, constitute the second class, known in the British Navy as 
fleet auxiliaries. Whether they have been merely taken over on 
charter from the merchant service for the purposes of the war or 
have always been in the sole ownership and employment of the 
naval authorities, they are not permitted to engage in acts of war, 
nor do they fly the flag of a fighting ship. Whether they fly a 
special flag or the flag of their merchant service the rights and 
duties of their position remain the same; in regard to the enemy 
they are in the position of merchant ships; that is to say, they 
may be captured or destroyed and may resist if attacked, but musi 
not themselves begin an attack, but in regard to neutrals and the 
use of their ports and waters they are in the same position as the 
fighting ships. (Ibid. p. 48.) 

This right to exercise forcible resistance must clearly come 
into operation the moment the hostile warship proceeds to take 
any step toward effecting capture ; that is, approaches with a 
view to exercising the right of visit and search or to bringing 
her guns to bear. It is perfectly lawful to presume her hostile 
intent without waiting for her to announce it formally by signal 
or by firing a warning shot. This is as true with regard to hostile 
submarine as to surface vessels, especially if they are notoriously 
in the habit of indulging in the illegal practice of torpedoing all 
merchant vessels at sight, which was the policy adopted by Ger- 
man warships of this class during the Great War. (Ibid. p. 54.) 

State control of shipping. — Subsidies and other special 
measures have been resorted to by states desiring to con- 
trol merchant shipping. These have developed accord- 
ing to the supposed interests of the states concerned. 
Sometimes mercantile interests, sometimes political plans r 


and sometimes war exigencies have determined the atti- 
tude of states toward the mercantile marine. The World 
War dislocated the commerce of the world to such an 
extent that unusual measures were undertaken, and at- 
tempts to justify the measures sometimes strained the 
ordinary processes of international negotiation and led 
to action which made world conditions even more un- 

Control of shipping by the United States. — By the 
act of June 15, 1917, the President of the United States 
was authorized: 

(c) To purchase, requisition, or take over the title to, or the 
possession of, for use or operation by the United States, any ship 
now constructed or in process of construction or hereafter con- 
structed, or any part thereof, or charter of such ship. (40 TJ. S. 
Stat, p. 182.) 

This was an act " to supply urgent deficiencies in ap- 
propriations for Military and Naval Establishments on 
account of Avar expenses." 

The act also provides : 

The word " ship " shall include any boat, vessel, or submarine 
and the parts thereof. 

The same act made provision for the operation of ships 
thus acquired by agencies other than the Army and Navy 
Departments. Ships were taken over by the President 
under this authorization and at times the United States 
represented by the United States Shipping Board became 
" the possessor " of the vessel. 

Certificate of requisition. — The documentary evidence 
is shown in the certificate of requisition. 1 

Charters. — Kequisition charters made provision for 
compensation and for the operation of these vessels un- 
der time charters if they were taken over by the Ship- 
ping Board or under certain other conditions for opera- 
tion under the bare-boat form. 

The Shipping Board. — The United States Shipping 
Board, instituted in 1916 to build up a merchant marine 

See footnote on page 46. 



o^ N 





Department of Commerce 



drrttfirate of 1? qutHtttmt 

3n 5ur«uanrr of lljl foLloroinj f rorlmnolmn of U(t JJrrstirnl of tljr litttfi> &tatf ». pramuLgalrii flUrtl) 20. 1818. 

By the President of the United States of America: 

Whereas, the law and practice of nations accords to a belligerent power the right in times of military exigency and 
for purposes essential to the prosecution of war, to takeover and utilize neutral vessels lying within its jurisdiction; 
++++t++i . + +++ And whereas the act of Congress of June 15, 1917, entitled "An act making appropriations to supply urgent deficiencies in 

I r *"'~Jz?* t appropriations for the Military and Naval Establishments on account of war expenses for the fiscal year ending June thirtieth, 
I <ET™' i nineteen hundred and seventeen, and for the other purposes," confers upon the President power to take over the possession 
+++++++♦ +♦♦+ j ^y^y vessel within the jurisdiction of the United States for use or operation by the United States: 

Now therefore, I, Woodrow Wilson, President of the United States of America, in accordance with international law and 
practice and by virtue oi the act of Congress aforesaid, and as Commander in Chief o( the Army and Navy of the United 
States, do hereby find and proclaim that the imperative military needs of the United States require the immediate utilization 
• of vessels of Netherlands registry, now lying within the territorial waters of the United States; and I do therefore authorize and empower the 
i Secretary of the Navy to take over on behalf of the United States the possession of and to employ all such vessels of Netherlands registry as 
| may be necessary for essential purposes connected with the prosecution of the war against the Imperial German Government. The vessels 
£ shall be manned, equipped, and operated by the Navy Department and the United States Shipping Board, as may be deemed expedient; and 
^ the United States Shipping Board shall make to the owners thereof full compensation, in accordance with the principles of international law. 
t In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. 

| Done in the District of Columbia, this twentieth day of March, in the year of our Lord one thousand nine hundred and eighteen, and of 

| the independence of the United States of America the one hundred and forty-second. 


ROBERT LANSING, S<a*Ury of Sittt. 

has taken and subscribed the required oath, and has sworn that the United States of America represented by the United States Shipping Board 

is the only possessor of the tesset called the __ „ , of _ 

whereof _ „ is at present master, and is a citizen of the United States, and that 

the said Vessel was built in the year /_ + it _ „ of _ 

as appears by f .._ _ - * 

has certified that the said vessel is a _ .; that she has 

deck.. ., „ „ mast, a _ head, and a stem; that 

her register length is - !$•****' ner rt 9^ ster breadth _ _. feet, her register devth !*&**' 

her height ... _ feet; thai she measures as follows: 

Capacity under tonnage deck 

Capacity between deckj Above tonnage deck 

Capacity of indotvm on the upper deck. via / Forecastle .. 
hooiti— round _., tide .. _ . chart _ _. 

. radio.. 

- / fcM*...- 

r Ught and air 

S'OSS TOM* ACt .. 

Deductions vndor Section 4153. Beetled Statutes, «f emended . 

Oev, space / Majttr'i cabin 

Steering gear , Anchor gov - 

Chart house —- — / Donkey engine and botUr . 

Storage of saOt ..- — . / Propelling pewr (aOoal n 

Boatswain's stores 
...J Radtohooit 

Total Deductions. . . 

Tht fotlo+Ang-deserOxd rputi. and no others, have boon omitted. vie: Foreptah used foe eualer-baJUst m 
mad foe m>ater-b*JU*t — ■■-, , open forecastle . open bridge 

■ donkey engine andboUer -. 
, vtater-doaeta 

the said m 

above specified. 

GPfEN under my hand and seal, at the Port of. _ 

day of ., in the year one thousand nine hundred and 

has agreed to the description and admeasurement 

CeOector of easterns. 


to meet American needs on the outbreak of war, became 
an agency for organizing the shipping to promote the 
ends of the war. As Prof. J. R. Smith, in The Influence 
of War on Shipping, says : " The official mind replaces 
supply and demand." Ships were allocated as to routes 
and employment. The taking over was on the outbreak 
of war for war purposes and the ships were run for war 

Ships on time charter. — While the time charter pro- 
vides that a vessel operated by the owner for the United 
States is not a public ship but shall be subject to the laws 
governing merchant ships, this provision relates to do- 
mestic rules and might be acceptable to neutrals. This 
provision would not determine the attitude of a belliger- 
ent toward a vessel requisitioned by the United States 
and under a time charter, the first provision of which is 
that " the steamship shall remain in the service of the 
United States." The United States Shipping Board had 
large grants from the Public Treasury for the mainte- 
nance of these ships. 

Subsidies, bounties, subventions, in one and another 
form, have been common and have placed vessels under 
obligation to the government with a possibility of control. 
It had been generally maintained that until the control 
had been assumed the vessel would be regarded as a pri- 
vate vessel, unless there was evidence to the contrary 
other than the existence of a subsidy in time of peace. 

Neutral attitude. — A neutral state is not concerned with 
the public or private ownership of merchant vessels fly- 
ing merchant flags of a belligerent state. It is, however, 
responsible for the treatment which it accords to vessels 
which are adapted to carry on hostilities. 

Belligerent attitude. — The belligerents are concerned 
both as to ownership and as to character of vessels. If 
a vessel is a public vessel of an enemy and armed it may 
be attacked without warning because it would be within 
the category of vessels of war. If it is an unarmed pub- 
lic vessel (not of an exempt class, such as hospital ships), 


it may likewise be attacked without warning if it is 
engaged in military operations as scouting, etc. The 
belligerent must for his own safety know whether a ves- 
sel of any nationality is concerned in the war. 

Shipping Board vessels. — There has been much dis- 
cussion as to the status of vessels of the United" States 
Shipping Board during war. This question was dis- 
cussed in the opinion of the United States and German 
Mixed Claims Commission in 1924. (Decisions and 
Opinions, p. 75; see also 1923 N. W. C, International 
Law Decisions, p. 189.) 

The Shipping Board was established in pursuance of the act 
of the Congress of the United States of September 7, 1916 (39 
Statutes at Large, 728), entitled "An act to establish a United 
States Shipping Board for the purpose of encouraging, developing, 
and creating a naval auxiliary and naval reserve and a merchant 
marine to meet the requirements of the commerce of the United 
States with its Territories and possessions and with foreign 
countries ; to regulate carriers by water engaged in the foreign 
and interstate commerce of the United States, and for other 
purposes." The act as amended provided that the members of the 
board should be appointed by the President subject to confirma- 
tion by the Senate; that they should be selected with due regard 
for the efficient discharge of the duties imposed on them by the 
act ; that two should be appointed from States touching the 
Pacific Ocean, two from States touching the Atlantic Ocean, one 
from States touching the Gulf of Mexico, one from States touch- 
ing the Great Lakes, and one from the interior, but that not 
more than one should be appointed from the same State and not 
more than four from the same political party. All employees of 
the board were selected from lists supplied by the Civil Service 
Commission and in accordance with the civil service law. The 
board was authorized to have constructed and equipped, as well 
as " to purchase, lease, or charter, vessels suitable, as far as the 
commercial requirements of the marine trade of the United 
States may permit, for use as naval auxiliaries or Army trans- 
ports, or for other naval or military purposes." * * * The 
board was authorized to create a corporation with a capital stock 
of not to exceed $50,000,000 "for the purchase, construction, 
equipment, lease, charter, maintenance, and operation of merchant 
vessels in the commerce of the United States." In pursuance of 
this latter provision the United States Shipping Board Emer- 


gency Fleet Corporation (sometimes hereinafter referred to as 
Fleet Corporation) was organized under the laws of the District 
of Columbia with a capital stock of $50,000,000, all fully paid and 
all held and owned by the United States save the qualifying 
shares of the trustees. Under the terms of the act, this corpora- 
tion could not engage in the operation of vessels owned or con- 
trolled by it unless the board should be unable to contract with 
citizens of the United States for the purchase or operation there- 
of. * * * The act taken in its entirety indicates that the 
controlling purpose of the Congress was to promote the develop- 
ment of an American merchant marine and also " as far as the 
commercial requirements of the marine trade of the United States 
may permit " provide vessels susceptible of " use as naval auxili- 
aries or Army transports, or for other naval or military pur- 
poses." * * * 

Following America's entrance into the war on April 6, 1917, 
Congress through the enactment of several statutes clothed the 
President of the United States with broad powers, including the 
taking over of title or possession by purchase or requisition of 
constructed vessels or parts thereof or charters therein and the 
operation, management, and disposition of such vessels and all 
other vessels theretofore or thereafter acquired by the United 
States. * * * Under the requisition charter it was expressly 
stipulated that the vessel " shall not have the status of a public 
ship, and shall be subject to all laws and regulations governing 
merchant vessels * * *. When, however, the requisitioned ves- 
sel is engaged in the service of the War or Navy Department, the 
vessel shall have the status of a public ship, and * * * the 
masters, officers, and crew shall become the immediate employees 
and agents of the United States, with all the rights and duties 
of such, the vessel passing completely into the possession and the 
master, officers, and crew absolutely under the control of the 
United States." At another point in the requisition charter it was 
stipulated that the master " shall be the agent of the owner in all 
matters respecting the management, handling, and navigation of 
the vessel, except when the vessel becomes a public ship." * * * 

Construing the shipping act, the Executive orders of the Presi- 
dent, and the provisions of an operating agreement similar to that 
hereinbefore described, the Supreme Court of the United States 
held a vessel owned by the Fleet Corporation but operated by an 
American national as an agent of the Shipping Board was a mer- 
chant vessel and subject to libel in admiralty for the consequences 
of a collision. It is apparent that a vessel either owned or requisi- 
tioned by the Shippnig Board or Fleet Corporation and operated 
by an agent of the United States under such an operating or man- 


aging agreement as hereinbefore described was a merchantman 
and in no sense impressed with a military character. 

The Mixed Commission's opinion was that the simple 
arming and manning by a gun crew would not convert 
a merchant vessel into "naval and military works or ma- 
terials " as that phrase w T as used in the treaty of Versail- 
les, but this opinion was not aimed at determining the 
status of such vessels in other respects. Indeed in this 
same opinion, in considering the case of the steamship 
John G. McOullough, requisitioned by the Shipping 
Board and turned over to the War Department and oper- 
ated under its orders, it was said: 

She possessed every indicia of a military character save that 
she was not licensed to be engaged in offensive warfare against 
«nemy ships. Offensive operations on the seas was not her func- 
tion. The fact that the legal title to her had not vested in the 
United States is wholly immaterial. She was in the possession 
of the United States. It had the right against all the world to 
hold, use, and operate her and was in fact operating her through 
its War Department by a master and crew employed by and sub- 
ject in every respect to the orders of the War Department. She 
was actively performing a service for the Army on the fighting 
front. She possessed none of the indicia of a merchant vessel. 
The very requisition charter under which she was operating took 
pains to declare her a " public ship " and not a merchant vessel 
subject to the laws, regulations, and liabilities as such as was 
the Lake Monroe. She was at the time of her destruction being 
utilized for " other * * * military purposes " within the 
meaning of that phrase as used in section 5 of the shipping act. 
She was impressed with a military character. 

In the technical sense such a vessel had practically been 
converted into a vessel which would be in the category of 
a public ship impressed with a military character. 

In the case of Berizzi Bros. Go. v. Steamship Peswo, 
decided by the United States Supreme Court in 1926, re- 
ferring to the case of Schooner Exohcmge (7 Cranch 
116), it was said: 

It will be perceived that the opinion, although dealing compre- 
hensively with the general subject, contains no reference to mer- 
chant ships owned and operated by a government. But the omis- 


sion is not of special significance, for in 1812, when the decision 
was given, merchant ships were operated only by private owners 
and there was little thought of governments engaging in such 
operations. That came much later. 

The decision in The Exchange, therefore, can not be taken as 
excluding merchant ships held and used by a government from 
the principles there announced. On the contrary, if such ships 
come within those principles, they must be held to have the same 
immunity as warships, in the absence of a treaty or statute of 
the United States evincing a different purpose. No such treaty 
or statute has been brought to our attention. 

We think the principles are applicable alike to all ships held 
and used by a government for a public purpose, and that when, 
for the purpose of advancing the trade of its' people or providing 
revenue for its treasury, a government acquires, mans, and oper- 
ates ships in the carrying trade they are public ships in the same 
sense that warships are. We know of no international usage 
which regards the maintenance and advancement of the economic 
welfare of a people in time of peace as any less a public purpose 
than the maintenance and training of a naval force. (271 U. S. 

Treatment of vessels. — The classes of public merchant 
vessels, armed and unarmed, are comparatively new. 
The treatment of belligerent vessels would logically rest 
on the criterion, Are the vessels combatant or noncom- 
batant? A belligerent can not legally demand that the 
personnel on a combatant vessel be spared. A belligerent 
may demand that the personnel on a noncombatant ves- 
sel be placed in safety. The question as to whether the 
title to a vessel is in a private, in a quasi private person 
of enemy nationality, or in the enemy state itself is a 
matter of minor importance, particularly since the na- 
tional control of shipping in belligerent countries js 
probable in future wars. If, however, the principle of 
exemption of private property at sea from capture should 
be adopted, the question of title might become important. 

Sir Frederick Smith in March, 1917, wrote : 

Vessels belonging to the enemy state, and notably warships, 
may be attacked, captured, or destroyed by a belligerent man-of- 
war anywhere on the high seas or in the territorial waters of 
the contending belligerents, at any time and without notice. But 


enemy merchantmen are not to be subjected to such summary 
and drastic treatment. 

There are several reasons for such differentiation. In the first 
place, enemy merchantmen are not combatants. International 
law and practice have long recognized a line of demarcation 
between combatants and noncombatants both in war on land and 
in war on sea. (The Destruction of Merchant Ships under 
International Law, p. 15.) 

Manifestly the sinking without notice of vessels un- 
armed and engaged in purely mercantile pursuits, even 
though the property of an enemy state, might bring 
no commensurate military advantage. If all publicly 
owned vessels were liable, the United States Shipping 
Board vessels could probably be sunk without notice. 
Transfer to private ownership after outbreak of war 
would doubtless be held invalid. Many questions would 
arise as to vessels partly public owned or subsidized. 

Ground of suspicion. — The Elve and The Bernisse were 
two Dutch steamships engaged in carrying' groundnuts 
from Senegal to Rotterdam, a transport approved by the 
French Government, and each consignment was accom- 
panied by a sort of permit issued by the French colonial 
authorities. These vessels were stopped by a British 
cruiser off the Orkney Islands on May 20, 1917, and were 
ordered to go to Kirkwall, and on each a prize crew of 
aii officer and three men was put to see that the order 
was carried out. The reason given was that the vessels 
did not have a British permit and that the cargo was in 
bulk and that " it would have been impossible to examine 
the ships at sea in order to find out whether there was 
anything hidden under the cargo." 

At the time of the sending in of these Dutch steamships 
the Order in Council of February 16, 1917, was in effect : 

1. A vessel which is encountered at sea on her way to or from 
a port in any neutral country affording means of access to the 
enemy territory without calling at a port in British or allied terri- 
tory shall, until the contrary is established, be deemed to be car- 
rying goods with an enemy destination, or of enemy origin, and 
shall be brought in for examination, and, if necessary, for adjudi- 
cation before the prize court. 


2. Any vessel carrying goods with an enemy destination, or of 
enemy origin, shall be liable to capture and condemnation in re- 
spect of the carriage of such goods: Provided, That in the case 
of any vessel which calls at an appointed British or allied port 
for the examination of her cargo, no sentence of condemnation 
shall be pronounced in respect only of the carriage of goods of 
enemy origin or destination, and no such presumption as is laid 
down in article 1 shall arise. 

3. Goods which are found on the examination of any vessel to 
be goods of enemy origin or of enemy destination shall be liable to 

4. Nothing in this order shall be deemed to affect the liability of 
any vessel or goods to capture or condemnation independently of 
this order. (3 Grant, Br. and Col. Prize Cases, p. 771.) 

While the vessels were en route to Kirkwall The Elve 
was sunk by a German submarine and The Bernisse was 
badly damaged. 

In 1920 the judicial committee of the Privy Council, to 
which the case had come on appeal from a judgment 
against the Crown, said : 

As there was in this case no ground whatever proved on which 
either ships or cargo could have been condemned as prize, any 
more than any ground for detaining them under the Order in 
Council, the question remaining is merely that of reasonable 
ground for the action taken. To show such ground the Crown 
rely on two points : First, they say that the detention was a 
legitimate exercise of the right of search. In this war it has 
been agreed that search at sea has been practically impossible, 
and sending into port for search has been almost universal. In 
this case, further, there was evidence that the search at sea for 
contraband hidden under the groundnuts would have been im- 
possible. The President, however, has disposed of this point by 
saying that even if the officers might have suspected that some- 
thing contraband was hidden under the groundnuts ; in fact, they 
did not do so, and have never said that they did. They really 
only sent the vessels in because there was no green clearance. 
This seems a sufficient answer, and it is unnecessary to go further, 
but counsel for the respondents do further argue that ever for a 
search reasonable ground for suspicion must be shown, and that 
where everything is in order on the papers, and there is no cir- 
cumstance suggesting hidden contraband, even a search on the 
spot would be unjustifiable. In strictness this is, of course, cor- 
rect; but so little suspicion is required to justify a, search that 


their lordships are not prepared to say that if a boarding officer 
were to state that, finding the cargo to be in bulk, he thought that 
something might be hidden under it, and therefore directed a 
search, his conduct would be so unreasonable as to subject the 
Crown to a liability for damages. (Ibid.) 

In referring to the case of the Ostsee, which arose in 
the Crimean War, the judicial committee said : 

It was there held that to exempt captors from costs and dam- 
ages there must be some circumstances connected with the ship or 
cargo affording reasonable ground for belief that the ship or 
cargo might prove a lawful prize. (Ibid.) 

In referring later to this case, approval was given to 
the headnote, " That an honest mistake occasioned by 
an act of government will not relieve captors from lia- 
bility to compensate a neutral." 

From this deliberate decision of the highest British 
judicial authority it is evident that " a reasonable ground 
for suspicion must be shown " to render a vessel liable to 
search, though just what such ground might be is not 

Bringing in of prize. — Early instructions in regard to 
bringing in of prize are reviewed in Situation III of 
Naval War College International Law Situations of 1908, 
pages 68 to 70. 

The Institut de Droit International at the Oxford ses- 
sion in 1913 formulated the following : 

Art. 102. Le navire saisi doit etre conduit dans un port de 
l'Etat capteur ou dans celue d'une puissance belligerante ailliee, 
aussi proche que possible, susceptible d'offrir un abri sur et ayant 
cles communications faciles avec le tribunal des prises charge 
de statuer sur la capture. Pendant le voyage la prise naviguera 
avec le pavilion et la flamme, insigne des navires militaries de 

The Instructions issued to the Navy of the United 
States in 1917 prescribed in section 80 that — 

80. Except under extraordinary circumstances, prizes shall be 
sent promptly to a port within the jurisdiction of the United 
States for adjudication. In general, a prize master with a crew 
shall be sent on board the prize for this purpose. If for any 


reason this is impracticable, a prize may be escorted into port by 
the capturing vessel or by another vessel of war of the United 
States or of an ally. In this exceptional case the prize shall be 
directed to lower her flag and to steer according to the orders of 
the escorting vessel of war. The prize must obey the instructions 
of the escorting vessel, under pain of forcible measures. 

Other regulations provide for escort of prize to port 
of adjudication. In early cases before prize courts, the 
intention of taking the prize had to be proven. The 
animus capiendi must be supported by fact. The master 
of a merchant vessel may be requested to navigate his 
vessel in accordance with certain directions, but the mas- 
ter is under no obligations to navigate in such manner. 
The consequences of refusal depend upon the adequacy 
of the force of the captor and failure to follow instruc- 
tions may result in the consequences that follow resistance 
to capture. 

While there may be problems arising from bringing 
vessels into port for prize proceedings and from bringing 
vessels into port for search, in both cases the responsi- 
bilty rests upon the flag of the state bringing the vessel 
in, but the wrongful bringing in or detention may give 
ground for compensation. Whether certificates, " letters 
of assurance," " navicerts," or other documentation at the 
port of shipment will be accepted as proof of innocence 
in the future, when such proficiency in . evading super- 
vision outside neutral jurisdiction has been developed, 
as has been shown off the coast of the United States in 
circumventing regulations relating to liquor traffic, is 
open to question. The wit of man in evading man-made 
law has usually shown a development commensurate with 
that of the law, and there is always the possibility among 
states that undue interference may provoke effective re- 
taliation. This may be specially potent in commercial 
relations in time of war. 

When a merchant vessel is under the actual control of 
a vessel of war of a belligerent, there is no question as 
to the responsibility and liability, whether or not the bel- 


]igerent vessel has acted in a strictly legal manner. If 
there is a reasonable ground for taking a vessel into 
port, it is usually admitted that there is no liability ex- 
cept to use reasonable care in navigation. In the case 
of The Elve and The Bemisse before the British courts, 
it was argued " that ever for a search reasonable ground 
for suspicion must be shown, and that where everything 
is in order on the papers, and there is no circumstance 
suggesting hidden contraband, even a search on the spot 
would be unjustifiable " (3 Grant, Br. and Col. Prize 
Cases, p. 777), and the judicial committee of the Privy 
Council admitted that " in strictness this is, of course, 
correct; but so little suspicion is required to justify a 
search that their lordships are not prepared to say that 
if a boarding officer were to state that, finding the cargo 
to be in bulk, he thought that something might be hidden 
under it and therefore directed a search, his conduct 
would be so unreasonable as to subject the Crown to a 
liability for damages." (Ibid.) 

British practice, 1911^-1915. — At the outbreak of the 
World War in 1914, it was expected that the laws of war 
previously recognized would be observed by the belliger- 
ents. Of this a paper presented to the British Parlia- 
ment in January, 1916, said : 

1. The object of. this memorandum is to give an account of the 
manner in which the sea power of the British Empire has been 
used during the present war for the purpose of intercepting Ger- 
many's imports and exports. 


2. The means by which a belligerent who possesses a fleet has, 
up to the time of the present war, interfered with the commerce 
of his enemy are three in number : 

(i) The capture of contraband of war on neutral ships. 
(ii) The capture of enemy property at sea. 
(in) A blockade by which all access to the coast of the enemy 
is cut off. 

3. The second of these powers has been cut down since the 
Napoleonic wars by the Declaration of Paris of 1856, under which 
enemy goods on a neutral ship, with the exception of contraband 


of war, were exempted from capture. Enemy goods which had 
been loaded on British or allied ships before the present war were 
seized in large quantities immediately after its outbreak ; but for 
obvious reasons such shipments ceased, for all practical purposes, 
after August 4, 1914, and this particular method of injuring the 
enemy may, therefore, for the moment be disregarded. 

No blockade of Germany was declared until March, 1915, and, 
therefore, up to that date we had to rely exclusively on the right 
to capture contraband. 


4. By the established classification goods are divided into three 
classes : 

(a) Goods primarily used for war-like purposes, 
(fr) Goods which may be equally used for either war-like or 
peaceful purposes. 

(c) Goods which are exclusively used for peaceful purposes. 

5. Under the law of contraband, goods in the first class may 
be seized if they can be proved to be going to the enemy country ; 
goods in the second class may be seized if they can be proved to 
be going to the enemy government or its armed forces ; goods in 
the third class must be allowed to pass free. As to the articles 
which fall within any particular one of these classes, there has 
been no general agreement in the past, and the attempts of bellig- 
erents to enlarge the first class at the expense of the second and 
the second at the expense of the third have led to considerable 
friction with neutrals. 

6. Under the rules of prize law, as laid down and administered 
by Lord Stowell, goods were not regarded as destined for an 
enemy country unless they were to be discharged in a port in 
that country; but the American prize courts in the Civil War 
found themselves compelled by the then existing conditions of 
commerce to apply and develop the doctrine of continuous voy- 
age, under which goods which could be proved to be ultimately 
intended for an enemy country were not exempted from seizure 
on the ground that they were first to be discharged in an inter- 
vening neutral port. This doctrine, although hotly contested by 
many publicists, had never been challenged by the British Gov- 
ernment, and was more or less recognized as having become part 
of international law. 

7. When the present war broke out it was thought convenient, 
in order, among other things, to secure uniformity of procedure 
among all the allied forces, to declare the principles of inter- 
national law which the allied Governments regarded as applicable 

69574—31 5 


to contraband and other matters. Accordingly, by the Orders 
in Council of August 20 and October 22, 1914, and the correspond- 
ing French decrees, the rules set forth in the Declaration of Lon- 
don were adopted by the French and British Governments with 
certain modifications. As to contraband, the lists of contraband 
and free goods in the declaration w r ere rejected, and the doctrine 
of continuous voyage was applied not only to absolute contraband, 
as the declaration already provided, but also to conditional con- 
traband, if such goods were consigned to order, or if the papers did 
not show the consignee of the goods, or if they showed a con- 
signee in enemy territory. 

8. The situation as regards German trade was as follows : 
Direct trade to German ports (save across the Baltic) had al- 
most entirely ceased, and practically no ships were met with 
bound to German ports. The supplies that Germany desired to 
import from overseas were directed to neutral ports in Scandi- 
navia, Holland, or (at first) Italy, and every effort was made 
to disguise their real destination. The power which we had to 
deal with this situation in the circumstances then existing was — ■ 

(i) We had the right to seize articles of absolute contraband if it 
could be proved that they were destined for the enemy country, 
although they were to be discharged in a neutral port. 

(ii) We had the right to seize articles of conditional contraband 
if it could be proved that they were destined for the enemy Gov- 
ernment or its armed forces, in the cases specified above, although 
they were to be discharged in a neutral port. 

9. On the other hand, there was no power to seize articles of 
conditional contraband if they could not be shown to be destined 
for the enemy Government or its armed forces, or noncontraband 
articles, even if they were on their w r ay to a port in Germany, 
and there was no power to stop German exports. 

10. That was the situation until the actions of the German 
Government led to the adoption of more extended powers of inter- 
cepting German commerce in March, 1915. The allied Govern- 
ments then decided to stop all goods which could be proved to be 
going to or coming from Germany. The state of things produced 
is in effect a blockade, adapted to the condition of modern war 
and commerce, the only difference in operation being that the 
goods seized are not necessarily confiscated. In these circum- 
stances it will be convenient, in considering the treatment of 
German imports and exports, to omit any further reference to 
the nature of the commodities in question as, once their destina- 
tion or origin is established, the power to stop them is complete. 
Our contraband rights, however, remain unaffected, though they, 
too, depend on the ability to prove enemy destination. ( Statement 


of the Measures Adopted to Intercept the Seaborne Commerce of 
Germany. British Parliamentary Papers, Misc., No. 2 (1916), 
P 1.) 

Restriction of comnverce by reprisals. — While reprisals 
are aimed against an enemy, the belligerents in the World 
War did not hesitate to resort to measures which directly 
affected neutrals. So long as neutrals tolerated such 
action or merely wrote notes which could be answered 
somewhat at leisure by the belligerents, reprisals nat- 
urally extended so as to interfere more and more with 
what were previously regarded as neutral rights. 

The British Order in Council of March 11, 1915, pur- 
porting to be replying to the German proclamation de- 
claring the waters surrounding the United Kingdom a 
military area, in reprisal stated that His Majesty had 
" therefore decided to adopt further measures to pre- 
vent commodities of any kind from reaching or leaving 
Germany." This Order in Council was published in 
the London Gazette of March 15, 1915, and transmitted 
in a letter of the same date by the American ambassador 
to the Secretary of State. In a note of March 30 the 
American Secretary of State mentions this Order in 
Council as containing " matters of grave importance to 
neutral nations. They appear to menace their rights to 
trade and intercourse not only with belligerents but also 
with one another." * * * 

The Order in Council of the 15th of March would constitute, 
were its provisions to be actually carried into effect as they stand, 
a practical assertion of unlimited belligerent rights over neutral 
commerce within the whole European area, and an almost un- 
qualified denial of the sovereign rights of the nations now at 

This Government takes it for granted that there can be no 
question what those rights are. A nation's sovereignty over its 
own ships and citizens under its own flag on the high seas in 
time of peace is, of course, unlimited ; and that sovereignty suffers 
no diminution in time of war, except in so far as the practice 
and consent of civilized nations has limited it by the recognition 
of certain now clearly determined rights, which it is conceded 
may be exercised by nations which are at war. 


A belligerent nation has been conceded the right of visit and 
search, and the right of capture and condemnation, if upon ex- 
amination a neutral vessel is found to be engaged in unneutral 
service or to be carrying contraband of war intended for the 
enemy's government or armed forces. It has been conceded the 
right to establish and maintain a blockade of an enemy's ports 
and coasts and to capture and condemn any vessel taken in 
trying to break the blockade. It is even conceded the right to 
detain and take to its own ports for judicial examination all 
vessels which it suspects for substantial reasons to be engaged 
in unneutral or contraband service and to condemn them if the 
suspicion is sustained. But such rights, long clearly defined 
both in doctrine and practice, have hitherto been held to be the 
only permissible exceptions to the principle of universal equality 
of sovereignty on the high seas as between belligerents and 
nations not engaged in war. 

It is confidently assumed that His Majesty's Government will 
not deny that it is a rule sanctioned by general practice that, 
even though a blockade should exist and the doctrine of contra- 
band as to unblockaded territory be rigidly enforced, innocent 
shipments may be freely transported to and from the United 
States through neutral countries to belligerent territory without 
being subject to the penalties of contraband traffic or breach of 
blockade, much less to detention, requisition, or confiscation. 

Moreover the rules of the Declaration of Paris of 1856 — among 
them that free ships make free goods — will hardly at this day 
be disputed by the signatories of that solemn agreement. (9 Amer. 
Jour. Int. Law, Spec. Sup., July, 1915, p. 117.) 

Protests from neutral sources in regard to the opera- 
tion of the exceptional measures provided for in the 
British retaliatory order led to an investigation and 
special report by a committee. This report was presented 
to Parliament in February, 1917. The committee as a 
result of its investigation says in part : 

Neutral vessels are brought into British ports under the order 
in council of March 11, 1915, in order that the belligerent may 
be satisfied as to the character, ownership, destination, or origin 
of the cargo which they carry. Whether any delay caused by the 
methods employed in dealing with ships and cargoes so brought in 
is or is not avoidable must be determined by reference to the delay 
which is inseparable from the effective exercise of this right. 

That its exercise must involve some delay is plain. This would 
be true even if the belligerent were to rely exclusively on the 


older practice of search at sea. But we are satisfied upon the 
evidence that the maintenance of this practice is neither possible, 
in view of the increased size of ships, nor, in view of the conduct 
of enemy submarines, desirable in the interests of neutral lives and 

Not only so, but to exercise the right solely by means of the 
older practice would be tantamount to a complete abandonment 
of the right itself. The documents carried on a ship no longer 
furnish conclusive, or necessarily even presumptive, evidence of 
the true character, ownership, or destination of the cargo. The 
great increase of facilities by which goods can be circuitously 
conveyed to or from an enemy country, and the existence of other 
and speedier means of communication between traders than the 
ship carrying the goods, afford almost infinite opportunity for 
concealment. The documents which would disclose the true 
nature of the transaction, the contracts, correspondence, and 
cables may pass independently. Unless, therefore, the neutral is 
provided With better credentials than the documents carried by 
the ship, the evidence of the real facts has to be sought for by the 
belligerent from sources outside the ship. 

Some alteration, then, not of principle but of practice, became 
necessary, and the machinery for carrying into effect the order in 
council of March 11, 1915, is the modern equivalent of the older 
methods. In order to determine whether the delays resulting 
from the modern methods can be diminished or avoided, we have 
considered it our duty to investigate, point by point, the whole 
of this machinery and have examined witnesses from all the 
departments concerned. 


(1) Visit at sea. — All ships intercepted by the patrolling squad- 
rons are visited, the time occupied in so doing being about three 
hours, except in heavy weather, when delay occurs till the weather 
moderates sufficiently to permit of boarding. On a decision being 
taken to send the ship in, she is dispatched under an armed guard 
to the most convenient port, called a port of detention ; in the case 
of ships going "north-about," for the most part to Kirkwall or 
Lerwick, but sometimes, if westward bound, to Stornoway, or very 
occasionally to Ardrossan. Ships going " south-about " are de- 
tained in the Downs or sent into Falmouth or Dartmouth. 

(2) Visit and search at the port of detention. — On arrival at a 
port of detention the ship is visited by the customs officers, who 
examine the manifest, bills of lading, and any other relevant 
documents which she may be carrying, and prepare a detailed 


analysis of her whole cargo. Ships detained in the Downs are 
visited and reported upon in the same way by the naval authori- 
ties. (British Parliamentary Papers, Misc., No. 6 (1917), p. 2.) 

The committee seemed to find that the objections of 
neutrals proceeded from the nature of the order in 
council of March 11, 1915, rather "than to the ma- 
chinery by which those provisions were enforced." 

Instructions of the United States, 1917. — The Instruc- 
tions for the Navy of the United States Governing Mari- 
time Warfare, issued in 1917, were in accord with the 
generally understood requirements in regard to visit and 
search. Some of these requirements were based upon 
treaty stipulations : 

44. Subject to any special treaty provisions, the following pro- 
cedure is- directed : Before summoning a vessel to lie to a ship of 
war must hoist her own national flag. The summons shall be 
made by firing a blank charge (coup de semonce), by other inter- 
national signal, or by both. The summoned vessel, if a neutral, 
is bound to stop and lie to, and she should also display her colors ; 
if an enemy vessel, she is not so bound, and may legally even 
resist by force, but she thereby assumes all risks of resulting 

45. If the summoned vessel resists or takes to flight, she may 
be pursued and brought to by forcible measures, if necessary. 

46. When the summoned vessel has brought to, the ship of 
war shall send a boat with an officer to conduct the visit and 
search. If practicable, a second officer should accompany the 
officer charged with the examination. There may be arms in the 
boat, but the boat's crew shall not have any on their persons. 
The officer (or officers), wearing side arms, may be accompanied 
on board by not more than two unarmed men of the boat's crew. 

47. The boarding officer shall first examine the ship's papers in 
order to ascertain her nationality, ports of departure and destina- 
tion, character of cargo, and other facts deemed essential. If 
the papers furnish conclusive evidence of the innocent character 
of vessel, cargo, and voyage, the vessel shall be released ; if they 
furnish probable cause for capture, she shall be seized and sent 
in for adjudication (p. 21). 

Changes in practice, 1911^.-1918. — Among the many 
changes in practice during the World War was that of 
the introduction of extrinsic evidence in regard to lia- 


bility of vessels to capture. In early cases it was under- 
stood that in a prize court the " property of the neutral 
claimant shall not be condemned except on evidence com- 
ing out of his own mouth or arising out of the clear 
circumstances of the transaction. If this rule is unsatis- 
factory to captors, it is nevertheless the rule which the 
law prescribes." (Sir William Scott, in The Haabet 
(1805), 6 C. Robinson, Admiralty Reports, p. 54.) 

The British Prize Court Rules under which these prize 
courts later acted during the World War permitted the 
introduction of evidence from most diverse sources, some 
of it being inferential, from pre-war and postwar trade 
statistics. A note of the Department of State of the 
United States to the British Government, October 21, 
1915, stated : 

The result is, as pointed out above, that innocent vessels or 
cargoes are now seized and detained on mere suspicion, while 
efforts are made to obtain evidence from extraneous sources to 
justify the detention and the commencement of prize proceedings, 
The effect of this new procedure is to subject traders to risk of 
loss, delay, and expense so great and so burdensome as practically 
to destroy much of the export trade of the United States to neutral 
countries of Europe. 

(10) In order to place the responsibility for the delays of 
vessels and cargoes upon American claimants, the Order in Coun- 
cil of October 29, 1914, as pointed out in the British note of Feb- 
ruary 10, seeks to place the burden of proof as to the noncontra- 
band character of the goods upon the claimant in cases where the 
goods are consigned " to order " or the consignee is not named or 
the consignee is within enemy territory. Without admitting that 
the onus probandi can rightfully be made to rest upon the claim- 
ant in these cases, it is sufficient for the purposes of this note to 
point out that the three classes of cases indicated in the Order 
in Council of October 29 apply to only a few of the many seizures 
or detentions which have actually been made by British authori- 

(11) The British contention that in the American Civil War 
the captor was allowed to establish enemy destination by " all 
the evidence at his disposal," citing the Bermuda case (3 Wallace, 
515), is not borne out by the facts of that case. The case of the 
Bermuda, was one of " further proof," a proceeding not to deter- 
mine whether the vessel should be detained and placed in a 


prize court, but whether the vessel, haying been placed in prize 
court, should be restored or condemned. The same ruling was 
made in the case of the Sir William Peel (5 Wallace, 517). These 
cases, therefore, can not be properly cited as supporting the 
course of a British captor in taking a vessel into port, there to 
obtain extrinsic evidence to justify him in detaining the vessel 
for prize proceedings. (10 Amer. Jour. Int. law, 1916 Sup. p. 77.) 

This naturally led to an attempt to shift the burden of 
proof of innocence to the ship seized rather than to place 
upon the captor the burden of proof of guilt of the ves- 
sel captured. This and other changes, some of which 
might be reasonable, were made possible in 1914r-1918 
because of the weakness of some neutrals and the com- 
plaisance of others. 

Defense and offense. — From the general nature of in- 
structions given or supposed to have been given, it would 
seem that armed merchant vessels of belligerents were 
at liberty to fire upon enemy submarines without waiting 
for any firing by the submarine. The right of resistance 
has long been admitted and many argue that the most 
effective resistance is " a defensive attack." The differ- 
ence between " a defensive attack " and " an offensive at- 
tack " seems to be in the intention of the officer ordering 
the attack. Intention is not easy to prove, even in time 
of peace, and in time of war may be even more difficult. 
Article 22 of the London naval treaty requires subma- 
rines to conform to the rules of international law to 
which surface vessels of war are subject in their action 
with regard to merchant ships as to sinking or rendering 
the merchant vessel incapable of navigation. The mer- 
chant vessel may be subject to the use of force in case of 
persistent refusal to stop after summons or of active 
resistance to visit and search. The pointing of a gun 
on a vessel flying a belligerent flag at a vessel of war of 
an enemy would under the ordinary regulations not 
merely constitute active resistance but constructive at- 
tack which it would be the duty of the commander of the 
submarine to anticipate by his own fire. 



(a) Under the conditions the action of submarine No, 
5 in summoning the Star to lie to is legal and submarine 
No. 5 may, in case of persistent refusal, use force as 
would a surface vessel. The action of submarine No. 6 
in sinking the Star is illegal because not in accord with 
article 22 of the London naval treaty. 

(b) The submarine of state X would be justified in 
firing upon an enemy merchant vessel whose decks have 
been strengthened for mounting 6-inch guns when the 
guns are mounted and pointed at the submarine. 

(c) A submarine may order a merchant vessel to ac- 
company it to port under penalty of being sunk. 

Situation 11 

In state A, owing to uprisings in ports O and P, the 
local authorities are unable to maintain order. A vessel 
of war of the United States, the Naso, is in port O and 
a companion vessel, the Paxto, is in port P. No other 
vessels of war are in ports of state A. 

(a) In port O the crew of a merchant vessel of state 
A, the Moon, engages in a dispute with the crew of a 
merchant vessel of state B, the Sun. Shots are exchanged 
by the crews. The master of the Moon requests the aid 
of the Naso. 

(b) Later the Paxto, in leaving port P, runs aground 
and local tugs refuse to aid in pulling the vessel off 
unless paid in advance for the service. 

(c) Three members of the crew of the Comet, a vessel 
belonging to the United States Shipping Board and 
chartered to a private company, desert in port O. The 
master of the Comet requests that marines from the Naso 
may be detailed to apprehend the deserters. 

(d) Mr. B, a citizen of the LTnited States doing an 
import business in port O, is refused entrance for one of 
his vessels, the Western, on the ground that port O, 
owing to disturbed conditions, is closed. There is no 
force before port O. Mr. B has previously signed an 
agreement with the authorities of state A that he will not 
appeal to the United States for protection. He appeals 
to the commander of the Naso, 

What should be done in each case ? Whv ? 



(a) The Naso, under the situation as stated, where the 
local authorities are unable to maintain order owing to 
uprisings in the port — 


(1) May not interfere in any partisan manner in a 
struggle, but may protect nationals of the United States 
and their property. 

(2) When the Naso is the sole representative of re- 
sponsible authority, if the struggle is not political, it may 
act to preserve life. 

(3) The action should be confined to the measures es- 
sential to that end. This may involve the threat to use 
force or even the use of force. 

(b) Pay for the salvage service in advance and re- 
quire by force, if necessary, the rendering of the service 
for which payment is made. 

(<?) Inform the master of the Comet that under the act 
of March 4, 1915, no marines may be detailed to appre- 
hend the deserters. 

(d) Escort the Western into port, guarding against 
the furnishing of aid to either party in state A. The 
agreement of Mr. B with the authorities of state A has 
no effect. 


(a) Order in port. 

Order in port. — The ports of a state are under the 
jurisdiction of that state. The state has in the port 
both rights and duties. It is generally admitted that a 
state has complete jurisdiction over its own merchant 
vessels in its ports and over foreign vessels for matters 
other than those relating to the internal econonry of the 
vessel. The maximum amount of freedom consistent 
with the well-being of the port is usually accorded to ves- 
sels of war and other public vessels of a foreign state. 

It is often argued that as man existed before the state 
the right of self-preservation of the individual takes 
precedence over any state right on the ground that an 
individual would not transfer to the state a right which 
might involve his own existence. When, however, the 
right to declare war is intrusted to the state, many rights 
of the individuals are subordinated and even, in case of 
need, his right to exist in personal safety when the well- 


being of his state is threatened. The unity embodied 
in the state may from a broad point of view be more 
valuable to humanity than the individual or individuals 
who may be sacrificed to maintain it. Even extremists 
admit in fact that the law of humanity may sometimes 
take precedence over other law. It is, hoAvever, not al- 
ways easy to determine what is meant by the law of hu- 
manity. Some writers reason that order is essential both 
to the existence of the state and of humanity. Each 
state would for itself determine the degree and type of 
order which should prevail within its limits. Some 
writers maintain that since there is no constituted collec- 
tive world authority each state has the right to punish or 
to prevent violations of the right of humanity. (Grotius 
lib. ii, ch. xx, p. 40.) When there is no standard by 
which the rights of humanity can be measured, the opera- 
tion of such a doctrine might lead to many arbitrary 
acts on the part of states having differing views as to 
the right of humanity. The concepts of the right of hu- 
ll anity, however, vary greatly among the civilizations of 
the earth. This is evident when the grounds advanced as 
justifying intervention by one state in affairs of another 
state are concerned. 

The right to life has always been regarded as funda- 
mental and one that should be assured by all possible 
means in time of peace. When security involving risk of 
life is at stake in the interior of a state, a foreign state 
would not ordinarily be in any position to act other than 
by bringing the matter to the attention of the state within 
whose jurisdiction the situation has arisen. This method 
of procedure has often been followed in case of protests 
against racial and antiforeign uprisings. 

The maintenance of order in a port by the state within 
whose jurisdiction the port may be is presumed. Obedi- 
ence to port authorities is similarly presumed to be obli- 
gatory. Entrance of a foreign vessel of war to a port is 
not regarded as exceptional or requiring special explana- 


tion, though ordinarily notification of the proposed visit 
if: given. The world at large is interested in the mainte- 
nance of order and each state should make such efforts to 
that end as may be possible without interfering with the 
rights of other states. 

Necessity. — Early writers on international law found 
the grounds for many acts in the doctrine of necessity. 
Grotius and writers upon natural law often referred to 
necessity. Bartolus and Machiavelli sometimes seemed to 
bring the doctrine of necessity close to that of expediency. 
Self-defense has usually been acknowledged as a basis 
upon which a plea of necessity could rest. In the ex- 
amination of the doctrine of necessity, it is customary to 
distinguish military necessity or. necessity in time of war 
from other necessity. The use of exceptional means in 
defense of an unquestioned right is to be distinguished 
from the use of the same means in defence of an act which 
is not based upon an accepted right. An exceptional act 
under exceptional circumstances may not need the same 
grounds for its support as would an act based on necessity 
and in disregard of law. 

In acting under the plea of necessity and in disregard 
of international law the necessity must be " instant, over- 
whelming, and leaving no choice of means and no moment 
for deliberation" and the measures taken must be kept 
clearly within the need. 

The saying " necessity knows no law " is much more 
easy to cite than to sustain. It is, however, considered 
that in circumstances where there is no law or where law 
is not operating or where it can not operate, one who has 
power may be under obligation to use it wisely. 

Protection and aliens. — Aliens may be called upon in 
emergency to aid in maintaining order or averting dis- 
aster. This has been generally admitted when savage 
natives have threatened attack upon a town or when fire 
is spreading. The basis of such a call is nonpolitical 
and communal security. 


Iii 1888 Mr. Bayard, Secretary of State, in a note to 
the American minister to the Netherlands said: 

It is well settled by international law that foreigners tempo- 
rarily resident in a country can not be compelled to enter into 
its permanent military service. It is true that in times of social 
disturbance or of invasion their services in police or home 
guards may be exacted, and that they may be required to take 
up arms to help in the defense of their place of residence against 
the invasion of savages, pirates, etc., as a means of warding off 
some great public calamity by which all would suffer indiscrimi- 
nately. The test in each case, as to whether a foreigner can 
properly be enrolled against his will, is that of necessity. Unless 
social order and immunity from attack by uncivilized tribes can 
not be secured except through the enrollment of such a force, a 
nation has no right to call upon foreigners for assistance against 
their will. (1888 U. S. For. Rel., vol. ii, p. 1325.) 

Intervention. — Intervention by a state in the affairs of 
another state is now regarded as an act to which resort 
should be had only in rare instances. There is held to be 
no need for such action as was formerly common, as 
states are supposed to accept and apply fairly uniform 
standards of action. Even the doctrine of intervention 
on the grounds of humanity is now rarely advanced ex- 
cept as a cloak for aggression, which it is hoped the pro- 
visions of the covenant of the League of Nations and the 
practice thereunder may make wholly unnecessary. 
Prof. E. C. Stowell, who has given much attention to the 
subject of intervention, says: 

The right of the sovereign state to act without interference 
within its own territory, even though it be no more than a pre- 
sumption, is of such importance to the well-being of international 
society that the states in their wisdom, as evidenced in their prac- 
tice, have been jealous of lightly admitting the plea of humanity 
as a justification for action against a sister state, and we find 
that intervention on this ground has been rather rigidly limited 
to specific cases, and conditioned in each of them upon the exist- 
ence of a certain state of facts. (E. C. Stowell, International 
Law, p. 352.) 

Some of the provisions of the seamen's act of March 
14, 1915 (38 U. S. Stat., p. 1164), have been advocated as 
based on the desire to advance humanity. 


Interposition of foreign forces. — Foreign forces have 
often interposed for the protection of their nationals. 
There have been occasions when foreign forces have acted 
to preserve order even when nationals have not been 
directly involved. In 1929 the Department of State of 
the United States issued the second edition of a pam- 
phlet entitled " Right to Protect Citizens in Foreign 
Countries by Landing Forces." Cases are mentioned in 
which protection of nationals is not the object of the 
landing of the forces. 

In February last the Tuscarora, Commander Belknap, then at 
the port of Honolulu, in conjunction with the Portsmouth, Com- 
mander Skerrett, at the earnest solicitation of the Government, 
Was instrumental in aiding in the restoration of order in that 
city. On the 12th of that month, on the occasion of the election 
of a King, riotous proceedings occurred, and at the pressing re- 
quest of the authorities, detachments were landed from those 
vessels the following day. Their commanding officers were prompt 
on the occasion to comply with the wishes of the Government to 
aid in restoring order and be in readiness to protect the interests 
of our own citizens should they be jeopardized. In scarcely more 
than 15 minutes after signal on the 13th of February, companies 
comprising 150 officers, bluejackets, and marines, including a 
Gatling gun from the Portsmouth, were landed and marched to 
the scene of action. It was only necessary for the battalion to 
approach for the rioters to disperse. The courthouse was occu- 
pied and sentries posted at other public buildings. No further 
disturbances followed, and the new King was inaugurated. On 
the 16th a part of the force was withdrawn, and on the 20th 
the remainder, the Government signifying that their presence was 
no longer needed. (Right to Protect Citizens in Foreign Coun- 
tries by Landing Forces. Memorandum of the Solicitor for the 
Department of State, p. 67 ; see also Report of the Secretary of 
the Navy, 1874, p. 8.) 

In 1876, when conditions were disturbed in Mexico, 
forces were also landed and the Secretary of State of 
the United States notified the Mexican minister as fol- 

It is proper to inform you that this department was yesterday 
by telegraph apprised by the consul of the United States at Mata- 
moros that General Gonzalez, the chief insurrectionary officer 


there, had informed him of his intention to abandon that city in 
consequence of the approach of General Escobedo, who was then 
within 30 miles. The consul adds that as there were no civil 
authorities he had asked Commander Johnson to land a small 
force to protect the lives and property of foreigners, and that this 
had been done. This proceeding seems to have been so obviously 
necessary and proper under the circumstances that it is hoped the 
Mexican Government will not disapprove the act, especially as the 
force will be withdrawn as soon as the authority of that Govern- 
ment shall be restored. (Right to Protect Citizens in Foreign 
Countries by Landing Forces, p. 67.) 

Instructions, 1891. — The landing of forces for main- 
tenance of order in a disturbed area has occurred, par- 
ticularly in American and Asiatic territories, as in the 
time of unsettled conditions in Chile in 1891. Secretary- 
Tracy, in instructions to Hear Admiral Brown in 1891, 
laid down certain principles in time of disturbed condi- 
tions : 

As a further and more explicit guide for your action, you are 
directed : 

(1) To abstain from any proceedings which shall be in the 
nature of assistance to either party in the present disturbance, 
or from which sympathy with either party could be inferred. 

(2) In reference to ships which have been declared outlawed 
by the Chilean Government, if such ships attempt to commit in- 
juries or depredations upon the persons or property of Americans, 
you are authorized and directed to interfere in whatever way 
may be deemed necessary to prevent such acts; but you are not 
to interfere except for the protection of the lives or property of 
American citizens. 

(3) Vessels or other property belonging to our citizens which 
may have been seized by the insurgents upon the high seas and for 
which no just settlement or compensation has been made are liable 
to forcible recovery ; but the facts should be ascertained before 
proceeding to extreme measures and all effort made to avoid 
such measures. 

(4) Should the bombardment of any place, by which the lives 
or property of Americans may be endangered, be attempted or 
threatened by such ships, you will, if and when your force is suffi- 
cient for the purpose, require them to refrain from bombarding 
the place until sufficient time has been allowed for placing 
American life and property in safety. 


You will enforce this demand if it is refused ; and if it is 
granted, proceed to give effect to the measures necessary for the 
security of such life or property. 

5. In reference to the granting of asylum, your ships will not, 
of course, be made a refuge for criminals. In the case of persons 
other than criminals, they will afford shelter wherever it may 
be needed, to Americans first of all, and to others, including 
political refugees, as far as the claims of humanity may require 
and the service upon which you are engaged will permit. 

The obligation to receive political refugees and to afford them 
an asylum is, in general, one of pure humanity. It should not 
be continued beyond the urgent necessities of the situation, and 
should in no case become the means whereby the plans of con- 
tending factions or their leaders are facilitated. You are not to 
invite or encourage such refugees to come on board your ship, 
but should they apply to you your action will be governed by 
consideration of humanity and the exigencies of the service upon 
which you are engaged. When, however, a political refugee has 
embarked, in the territory of a third power, on board an American 
ship as a passenger for purposes of innocent transit, and it ap- 
pears upon the entry of such ship into the territorial waters that 
his life is in danger, it is your duty to extend to him an offer of 

6. Referring to paragraph 18, p. 137 of the Navy Regulations 
of 1876, which is as follows: 

" If any vessel shall be taken acting as a vessel of war or a 
privateer without having proper commission so to act, the officers 
and crew shall be considered as pirates and treated accordingly." 

You are informed that this paragraph does not refer to vessels 
acting in the interests of insurgents and directing their hostilities 
solely against the state whose authority they have disputed. It 
is only when such vessels commit piratical acts that they are to 
be treated as pirates, and unless their acts are of such character 
or are directed against the persons or property of Americans you 
are not authorized to interfere with them. 

7. In all cases where it becomes necessary to take forcible 
measures, force will only be used as a last resort, and then only 
to the extent which is necessary to effect the object in view. 
(House Exec. Doc, 1st sess. 52d Cong., 1891-92, vol. 34, 245.) 

Protected zones. — In recent years when local authori- 
ties have been unable to maintain order, foreign forces 
have sometimes declared that within certain defined areas 
no fighting should take place. These areas have often 

69574—31 6 


been termed " neutral zones," though war in the " legal 
sense " did not exist, but war in the " material sense " did 

In listing occasions on which American forces have 
been landed in foreign countries, the Department of State, 
in the pamphlet, Right to Protect Citizens in Foreign 
Countries by Landing Forces, says : 

In January, 1904, a revolution was going on in the Dominican 
Republic and the Navy Department had sent the U. S. S. Detroit, 
Commander A. C. Dillingham commanding, to Puerto Plata, on 
the north coast, to protect American liv^s and property. H. B. 
M. S. Pailas, C. Hope Robertson commanding, was also there for 
a similar purpose. 

The Jiminez faction, with Eugenio Deschamps in local com- 
mand, had possession of the city of Puerto Plata. Forces under 
General Cespedes, operating in behalf of the Morales provisional 
government, approached the place along the coastal plain from the 
east with the declared intention of attacking and taking it. It 
was unfortified, and the Deschamps troops intended to defend 
from the shelter of the dwelling and business houses. 

Commanders Dillingham and Robertson established a cordon 
of flags outside of and around the entire town, notifying Des- 
champs and Cespedes that no fighting would be permitted within 
that area. 

A few days later Cespedes commenced an attack, and Comman- 
der Dillingham placed his vessel in such a position that her fire 
could aid in preventing armed bodies entering the town. He 
also landed a guard which had instructions to prevent armed 
bodies crossing the line. The British ship seems to have been 
absent at this time, probably to get coal. 

The Deschamps forces sallied out to meet their enemies and 
fought them beyond the cordon of flags. Being defeated, they 
retreated within the cordon, throwing down their guns as they 
passed it, and the town was immediately surrendered to the 
Cespedes forces (p. 73). 

Blwefiel<h, 1910. — In 1910 during the period of dis- 
turbed conditions in Nicaragua the British as well as the 
American naval officials took action to protect both 
nationals and nonnationals and their property. The 
commander of the British naval force informed the lead- 
ers of both parties of the Nicaraguan forces ashore that 
he proposed to land an armed guard if necessary saying : 

BLUEFIELDS, 1910 75 

The majority of the houses in Greytown are owned by British 
subjects and some by the subjects of other foreign powers. It is 
impossible, therefore, to fight in the town of Greytown without 
seriously risking the lives and property of these foreign subjects. 
From its situation the whole of the attack and defense of the town 
can take place well clear of the houses and the victory to one 
side or the other there decided. 

This being so, I must insist that no fighting whatever take place 
in the town of Greytown ; and if any does take place there, I shall 
consider myself at liberty to land a strong armed party and guns 
to stop it, and the offending party will be absolutely held re- 
sponsible for any loss of life or damage of property caused 

The Secretary of State reports that in a telegram from 
the consul at Bluefields : 

Mr. Moffat says that Commander Gilmer issued a proclamation 
to the generals of the commanding forces of Estrada and Madriz 
and commander of Venus declaring that, in furtherance of pro- 
tecting lives and property of American citizens and noncombat- 
ants, foreigners, within town of Bluefields, it is demanded — 

First. That there be no armed conflict in the city. 

Second. That until a stable government is established only such 
armed force, not to exceed 100 men, will be allowed in Bluefields, 
necessary to police and preserve order. 

Third. There being no armed men of revolutionary forces in 
Bluefields, no bombardment of city will- be permitted, as it could 
result only in destruction of lives and property of Americans and 
other foreign citizens. (1910 U. S. For. Relations, p. 745.) 

Later in the same year the commander of the U. S. S. 
Paducah notified the forces contending in the neighbor- 
hood of Bluefields, Nicaragua, that he would oppose any 
attack on that city. The President of Nicaragua, Doctor 
Madriz, protested to President Taft that his, and other 
acts of the officers of the United States could not " be 
reconciled with the principles of neutrality proclaimed 
by the law of nations." In replying the Secretary of 
State on June 19, 1910, said: 

As to the statements made in the telegram of Doctor Madriz to 
the President, the Government of the United States took only 
the customary step of prohibiting bombardment or fighting by 
either faction within the unfortified and ungarrisoned commer- 


cial city of Bluefields, thus protecting the preponderating Ameri- 
can and other foreign interests, just as the British commander 
had done at Greytown, where there are large British interests. 
(1910 U. S. For. Rel., p. 753.) 

President Taft in a reply to a communication from the 
President of Mexico on the same subject reaffirmed the 
statement of the Secretary of State. (Ibid. p. 754.) 

The President of Honduras similarly reported, Janu- 
ary 29, 1911, that " the orders of the commanders of the 
English and American naval vessels in Puerto Cortes to 
restrict Government troops to a neutral zone, separated 
from its bases, places the troops at a great disadvant- 
age." (Idem 1911, p. 297.) 

Protection of foreigners. — There have been many ex- 
amples where, in case local authorities are temporarily 
unable to afford the usual protection to their own na- 
tionals and to nationals of other states, protection has been 
afforded or order has been maintained by some authority 
not directly involved. In fact, it may be argued that 
such protection would be more disinterested than that 
afforded to nationals. Snow's International Law pre- 
pared for this Naval War College says : 

The British Admiralty Regulations provide for cases of this 
kind in the following terms : 

"Applications for the protection of subjects of foreign powers 
in amity with Her Majesty may be entertained in case none of 
their ships of war are present; the application should, however, 
be made through Her Majesty's minister or consul, and it should 
only be acceded to when the protection does not interfere with 
the public service nor with the orders under which the naval 
officer is acting." 

Though no regulation of this kind exists for the United States 
Navy, it can be considered as an established usage to extend 
similar protection under similar circumstances (p. 65). 

In time of disturbed conditions, when local authorities 
were not able to maintain order, foreign states have often 
lent aid. Secretary of State Knox in 1912, writing in 
regard to sending naval vessels to Cuba, said to the 
American minister : " The vessels were sent solely to pro- 


vide some place and means of safety and protection for 
Americans and other foreigners and for such moral effect 
as they might have." (1912 U. S. For. Eel., p. 261.) 
The Secretary distinctly disavowed any intention to in- 
tervene. In speaking before the Senate Committee on 
Foreign Kelations the Secretary of State on May 24, 
1911, said: 

Honduras has been the scene of seven bloody revolutions within 
the last 15 years. Within that time the United States has been 
compelled to intervene, in the interests of universal commerce and 
civilization, to close or to prevent sanguinary ruinous civil war 
within her borders. (Ibid. p. 584.) 

In the same address the Secretary said: 

Whether rightfully or wrongfully, we are in the eyes of the 
world and because of the Monroe doctrine, held responsible for 
the order of Central America, and its proximity to the Canal 
Zone makes the preservation of peace in that neighborhood par- 
ticularly necessary. (Ibid. p. 588.) 

The Acting Secretary of State in 1912, writing to the 
Secretary of Navy, saying that the policy of the Depart- 
ment of State was one of nonintervention in Mexico, and 
that the commander of the U. S. S. Des Moines should 
maintain a strictly neutral attitude, added : 

It would be glad to have him report frequently upon the develop- 
ments in the political situation and begs to say that it would also 
be glad to have him, after Americans and American interests have 
been adequately provided for, to afford such assistance and pro- 
tection to foreigners and foreign interests as may be possible 
under the circumstances. (Ibid. p. 854.) 

In 1912 in the harbor of Vera Cruz Commander C. F. 
Hughes, of the cruiser Des Moines, informed the German 
consul that " In case the city is bombarded, I shall afford 
the same protection to the above properties as I shall af- 
ford protection to property of American citizens.'' 
(Ibid. p. 864.) As a result the American consul wrote to 
the Secretary of State, November 27, 1912 : 

The conduct of the American Government in its protection of 
the lives and property of foreigners and natives, and that of Com- 


mander Hughes, of the Des Moines, in particular, is lauded, and 
expressions of gratitude and approval are heard on all sides. 
(Ibid. p. 870.) 

Obligation of protection. — The abstract right of sover- 
eignty and obligation of protection was set forth in the 
award of the Permanent Court of Arbitration in the case 
between the United States and the Netherlands relating 
to the Island of Palmas, made April 4. 1928 : 

Territorial sovereignty, as has already been said, involves the 
exclusive right to display the activities of a State. This right 
has as corollary a duty : The obligation to protect within the terri- 
tory the rights of other States, in particular their right to in- 
tegrity and inviolability in peace and in war, together with the 
rights which each State may claim for its nationals in foreign 
territory. Without manifesting its territorial sovereignty in a 
manner corresponding to circumstances, the State can not fulfill 
this duty. Territorial sovereignty can not limit itself to its 
negative side — i. e., to excluding the activities of other States — 
for it serves to divide between nations the space upon which 
human activities are employed, in order to assure them at all 
points the minimum of protection of which international law is 
the guardian. 

Although municipal law, thanks to its complete judicial sys- 
tem, is able to recognize abstract rights of property as existing 
apart from any material display of them, it has none the less 
limited, their effect by the principles of prescription and the pro- 
tection of possession. International law, the structure of which 
is not based on any superstate organization, can not be presumed 
to reduce a right such as territorial sovereignty, with which al- 
most all international relations are bound up, to the category of 
an abstract right, without concrete manifestations. (Arbitral 
Award, p. 17.) 

President Cooliclge on treaty of 19%3. — In a message to 
Congress on January 10, 1927, President Coolidge gave 
a resume of the events leading up to the situation exist- 
ing at that time in Nicaragua and mentioned in particu- 
lar the treaty of peace and amity signed at Washington 
by the five Central American Republics on February 7, 
1923. In 1912, according to President Coolidge, the 
" United States intervened in Nicaragua with a large 
force and put down a revolution" and from "that time 

TREATY OF 192 3 79 

until 1925 a legation guard of American marines was, 
with the consent of the Nicaraguan Government, kept in 
Managua to protect American lives and property.*' 

On August 5, 1914, a treatv was signed by the United 
States and the Government of Nicaragua, by which the 
United States received the exclusive proprietary rights 
to build and operate an oceanic canal through Nicaragua 
as well as a 99-vear lease of the islands in the Caribbean 
Sea known as Great Corn Island and Little Corn Island. 
"The consideration paid by the United States to Nica- 
ragua was the sum of $3,000,000." "At the time of the 
payment of this money a financial plan was drawn up 
between the Nicaraguan Government and its creditors 
which provided for the consolidation of Nicaragua's ob- 
ligations," and though the United States did not estab- 
lish this plan by treaty, it " did aid through diplomatic 
channels and advise in the negotiations and establish- 
ment of this plan for the financial rehabilitation of 

In 1923, at the invitation of the United States, repre- 
sentatives of the five Central American countries, namely, 
Costa Rica, Guatemala, Honduras, Nicaragua, and Sal- 
vador met in Washington and entered into, among other 
treaties, a general treaty of peace and amity. Article II 
ol this treaty specifically provides that " the Govern- 
ments of the contracting parties will not recognize any 
other government which may come into power in any 
of the five Republics through a coup d'etat or revolu- 
tion." " The United States was not a party to this 
treaty, but it was made in Washington under the auspices 
of the Secretary of State, and this Government has felt 
a moral obligation to apply its principles in order to en- 
courage the Central American States in their efforts to 
prevent revolution and disorder." 

In October, 1924 an election for president, vice presi- 
dent, and members of the Congress was held in Nica- 
ragua, and this Government was recognized by the other 
Central American countries and by the United States, 


and shortly afterwards the United States gave notice of 
its intention of withdrawing its marines. The marines, 
however, were not withdrawn until August, 1925, when 
it appeared " as though tranquillity in Nicaragua was as- 
sured." Within two months from this time General 
Chamorro and his supporters seized the Loma, the for- 
tress dominating the chVv of Managua, and on January 16, 
1926, following the resignation of President Solorzano, 
General Chamorro took office as President of Nicaragua. 
The four Central American countries and the United 
States refused to recognize him. 

In a letter of January 22, 1926, the Secretary of State 
of the United States wrote to the Nicaraguan representa- 
tive in Washington : 

This Government has felt privileged to be able to be of assist- 
ance in the past at their request not only to Nicaragua but to all 
countries of Central America, more especially during the Confer- 
ence on Central American Affairs which resulted in the signing 
of a general treaty of peace and amity on February 7, 1923, be- 
tween the five Republics of Central America. The object of the 
Central American countries, with which the United States was 
heartily in accord, was to promote constitutional government and 
orderly procedure in Central America, and those Governments 
agreed upon a joint course of action with regard to the non- 
recognition of governments coming into office through coup d'etat 
or revolution. The United States has adopted the principles of 
that treaty as its policy in the future recognition of Central 
American Governments, as it feels that by so doing it can best 
show its friendly disposition toward and its desire to be helpful 
to the Republics of Central America. (Congressional Record, vol. 
68, pt. 2, pp. 1324-1326.) 

Neutral zone at Blue-fields. — After the coup d'etat of 
General Chamorro in Nicaragua and the establishment of 
a new government, a revolution broke out in May, 1926, 
in the neighborhood of Bluefields on the east coast. This 
was at first suppressed by the troops of General Cham- 
orro, but later a more violent revolution occurred in this 
district and requests were made to the United States for 
protection. Accordingly, the Secretary of State sug- 
gested to the Secretary of the Navy that war vessels be 


sent " to the Nicaraguan ports of Corinto and Bluefields 
for the protection of American and foreign lives and 
property in case that threatened emergencies materialize." 
u * * * The N aV y Department ordered Admiral Lati- 
mer, in command of the special service squadron, to pro- 
ceed to Bluefields. Upon arriving there he found it 
necessary for the adequate protection of American lives 
and property to declare Bluefields a neutral zone. This 
was done with the consent of both factions ; afterwards, 
on October 26, 1926, reduced to a written agreement, 
which is still in force." (Congressional Kecord, vol. 68, 
pt. 2, p. 1325.) 

United States attitude. — In periods of disturbed con- 
ditions in foreign states the attitude of the United States 
has varied. 

In the eighteenth century the United States was par- 
ticularly liberal in recognizing that there was a right of 
revolution, and in the early days of the nineteenth cen- 
tury the policy of the United States was markedly in 
contrast to the legitimist theories at the time current in 
Europe. As Jefferson said in a communication to Morris 
in 1793 : 

We surely can not deny to any nation that right whereon our 
own Government is founded, that everyone may govern itself 
according to whatever form it pleases and change these forms 
at its own will; and that it may transact its business with for- 
eign nations through whatever organ it thinks proper, whether 
king, convention, assembly, committee, president, or anything 
else it may choose. The will of the nation is the only thing 
essential to be regarded. (1 Moore, Int. Law Digest, p. 120.) 

In general this attitude was maintained up to the time 
of the Civil War, when domestic exigencies somewhat 
changed the attitude of the Northern States. This 
change was particularly evident, as what Mr. Seward 
called " an unquiet and revolutionary spirit " seemed to 
be spreading to other countries on the American conti- 
nent. In 1866 Mr. Seward said : 

The policy of the United States is settled upon the principle 
that revolutions in republican states ought not to be accepted 


until the people have adopted them by organic law with solem- 
nities which would seem sufficient to guarantee their stability and 
permanency. This is the result of reflection upon national trials 
of our own. 

From the time of the French Republic of 1870 there 
was for a period an inclination to recognize the party in 
cle facto control of the organs dealing with international 
relations. Occasionally during the days of Mr. Blaine's 
occupancy of the office of Secretary of State policies 

While during the nineteenth century questions of policy 
determined the attitude of the United States toward areas 
in which disturbed conditions prevailed, with the begin- 
ning of the twentieth century special interests of the 
United States in the area in which disturbed conditions 
prevailed became more influential. National interests. 
" dollar diplomacy," " big stick " policies, and the like 
indicated a considerable change. 

The attitude toward the Caribbean, toward Mexico, 
toward the Central American States to the south of Mex- 
ico, toward Panama, toward the South American States, 
toward China, and toward disturbed areas in Europe was 
not uniform. 

With the administration of President Wilson there was 
further considerable change in attitude, and a drift to- 
ward regarding attempts to overthrow governments by 
force as illegal on the American Continent. There was a 
favorable attitude toward the attempts in other parts of 
the world of minorities to embody themselves in political 

After 1921 there was a tendency to go back to an 
attitude involving support of de facto authorit}^ while 
endeavoring to clothe this in a legitimist form. The 
treaty of 1923 of the Central American States embodied 
this for that area. This did not, however, apply for the 
rest of the world. There was developing a sort of idea of 
regujarization in addition to the de facto policy. 


At the present time there seems to be much uncertainty 
as to what should be the attitude of the United States in 
case the legitimate authorities are unable to maintain 

Resume. — Under ordinary circumstances local port au- 
thorities would have jurisdiction over merchant vessels 
within their ports except in matters relating to the inter- 
nal economy of the vessels. As to actions taking effect 
outside the vessel, the local authorities would have com- 
plete authority. These authorities are likewise under 
obligation to maintain order in the port. 

In cases where local authorities have been unable to 
maintain order, as at times in Alaska, Bluefields, Nic- 
aragua, Panama, China, etc., public vessels of foreign 
states in port at the time have often given protection not 
merely to their own citizens but also to other foreigners 
who otherwise might be in peril. It has come to be quite 
commonly accepted as a proper course of action that a 
vessel of war should in absence of other responsible au- 
thority use reasonable efforts to prevent violence. 

The policy of the United States has changed from time 
to time in regard to recognition of States set up by revo- 
lutionary movements and in regard to the maintenance 
of order in the States to the south and elsewhere. In gen- 
eral the attitude has been that order should be main- 
tained, and so far as its action could support order it 
would be available. 


(a) The Naso, under the situation as stated, where the 
local authorities are unable to maintain order owing to 
uprisings in the port — 

(1) May not interfere in any partisan manner in a 
struggle, but may protect nationals of the United States 
and their property. 

(2) When the Naso is the sole representative of re- 
sponsible authority, if the struggle is not political, it may 
act to preserve life. 


(3) The action should be confined to the measures es- 
sential to that end. This may involve the threat to use 
force or even the use of force. 
(b) Salvage. 

/Salvage. — When assistance is rendered to a seagoing 
vessel which is in danger, compensation for the service 
in the form of salvage is due. It was recognized in early 
law that there was no obligation to pay salvage to any 
party whose duty is to serve the vessel in distress as to 
its crew, pilot, master, passengers, or tug. If the same 
persons from another vessel render aid resulting in sav- 
ing a vessel in distress, salvage is allowed. Even if no 
amount has been agreed upon, the salvors are entitled 
to compensation. While a public vessel might not re- 
ceive salvage for aiding a private vessel which is in 
peril, a private vessel might, if the conditions were re- 
versed, be entitled to compensation. A life-saving crew 
in aiding a vessel in distress are simply performing their 
duty, as is a vessel of the Navy in affording aid to a vessel 
in case of mutiny on board. 

The salvage contract may be inquired into by the court. 
If the contract is made under such conditions as involve 
no inequalities in the parties negotiating, as in engaging 
a wrecking company to raise or pull off a vessel that has 
been in its present condition for a year, that one or the 
other party had made a bad bargain, would not be a 
concern of the court. If, however, a vessel in immediate 
danger makes with the salvor a contract involving ex- 
orbitant charges, the court will take cognizance if the 
fact is brought to its attention. It is not the purpose of 
the court to allow excessive claims but to consider the 
elements entering into the salvor's service, such as the 
imminence of danger to the vessel and to the salvor, the 
value of the same, the skill, time, labor, degree of suc- 
cess, exceptional conditions, etc. Professional salvors 
would ordinarily be allowed a larger amount for the 
same service than a vessel which happened to be in the 
neighborhood. The reason is that the professional sal- 


vage company is for the good of all to be encouraged to 
be available at a moment's notice to render aid and must 
accordingly incur the expense of such preparation for an 
uncertain employment of sometimes costly and excep- 
tional equipment. 

Salvage award. — The salvage award will be made by 
the court even if no contract has been made and even 
if the salvor merely responds to a call for help. The 
court in making the award will consider in a liberal 
manner the actual expenses to which the salvor has been 
put and then add what in its opinion is an amount suffi- 
cient to induce salvors to respond readily to calls for 
help and to assume the risks involved. If the claims of 
the salvors are not equitable in view of the conditions, 
or if payment to the salvor has been made under duress, 
the rescued vessel may find a remedy in the court. 

Treaty of 1910. — A multilateral treaty relating to as- 
sistance and salvage at sea was signed at Brussels, Sep- 
tember 23, 1910, and has since been ratified by the United 
States and by many other maritime states. (37 U. S. 
Stat, p. 1658.) 

This treaty states : 

Art. 6. The amount of remuneration is fixed by agreement be- 
tween the parties and, failing agreement, by the court. 

The proportion in which the remuneration is to be distributed 
among the salvors is fixed in the same manner. 

The apportionment of the remuneration among the owner, mas- 
ter, and other persons in the service of each salving vessel is 
determined by the law of the vessel's flag. 

Art. 7. Every agreement as to assistance or salvage entered 
into at the moment and under the influence of danger can, at the 
request of either party, be annulled or modified by the court if it 
considers that the conditions agreed upon are not equitable. 

In all cases, when it is proved that the consent of one of the 
parties is vitiated by fraud or concealment, or when the remuner- 
ation is,_ in proportion to the services rendered, in an excessive 
degree too large or too small, the agreement may be annulled or 
modified by the court at the request of the party affected. 

Art. 8. The remuneration is fixed by the court, according to 
the circumstances of each case, on the basis of the following con- 
siderations: (a) First, the measure of success obtained, the 


efforts and the deserts of the salvors, the danger run by the 
salved vessel, by her passengers, crew, and cargo, by the salvors 
and by the salving vessel, the time expended, the expenses in- 
curred and losses suffered, and the risks of liability and other 
risks run by the salvors, and also the value of the property ex- 
posed to such risks, due regard being had, the case arising, to the 
special adaptation of the salvor's vessel; (&) second, the value 
of the property salved. 

The same provisions apply to the apportionment provided for 
by the second paragraph of article 6. 

The court may reduce or deny remuneration if it appears that 
the salvors have by their fault rendered the salvage or assistance 
necessary, or have been guilty of theft, receiving stolen goods, 
or other acts of fraud. 

Art. 11. Every master is bound, so far as he can do so without 
serious danger to his vessel, her crew and passengers, to render 
assistance to everybody, even though an enemy, found at sea in 
danger of being lost. 

The owner of the vessel incurs no liability by reason of con- 
travention of the foregoing provisions. 

Art. 14. This convention does not apply to ships of war or to 
Government ships appropriated exclusively to a public service. 

Legislation of the United States. — An act of March 9 r 
1920, provides that a United States consul may furnish 
security for release of a vessel owned by the United 

Sec. 7. That if any vessel or cargo within the purview of sec- 
tions 1 and 4 of this act is arrested, attached, or otherwise seized 
by process of any court in any country other than the United 
States, or if any suit is brought therein against the master of any 
such vessel for any cause of action arising from, or in connec- 
tion with, the possession, operation, or ownership of any such 
vessel, or the possession, carriage, or ownership of any such cargo, 
the Secretary of State of the United States in his discretion, upon 
the request of the Attorney General of the United States, or 
any other officer duly authorized by him, may direct the United 
States consul residing at or nearest the place at which such 
action may have been commenced to claim such vessel or cargo 
as immune from such arrest, attachment, or other seizure, and to 
execute an agreement, undertaking, bond, or stipulation for 
and on behalf of the United States, or the United States Shipping 
Board, or such corporation as by said court required, for the re- 
lease of such vessel or cargo, and for the prosecution of any 


appeal ; or may, in the event of such suits against the master of 
any such vessel, direct said United States consul to enter the 
appearance of the United States, or of the United States Shipping 
Board, or of such corporation, and to pledge the credit thereof 
to the payment of any judgment and cost that may be entered in 
such suit. The Attorney General is hereby vested with power 
and authority to arrange with any bank, surety company, person, 
firm, or corporation in the United States, its Territories and pos- 
sessions, or in any foreign country, to execute any such afore- 
said bond or stipulation as surety or stipulator thereon, and to 
pledge the credit of the United States to the indemnification of 
such surety or stipulator as may be required to secure the execu- 
tion of such bond or stipulation. The presentation of a copy of 
the judgment roll in any such suit, certified by the clerk of the 
court and authenticated by the certificate and seal of the United 
States consul claiming such vessel or cargo, or his successor, and 
by the certificate of the Secretary of State as to the official capa- 
city of such consul, shall be sufficient evidence to the proper 
accounting officers of the United States, or of the United States 
Shipping Board, or of such corporation, for the allowance and 
payment of such judgments : Provided, however, That nothing in 
this section shall be held to prejudice or preclude a claim of the 
immunity of such vessel or cargo from foreign jurisdiction in a 
proper case. (41 U. S. Stat., Pt. I, 527.) 

The Porto Alexandre, 1920. — The statement of the case 
of the Porto Alexandre, which came before the British 
court in 1920, is as follows: 

This is an appeal from a decision of Hill, J., who made an order 
that the writ and warrant for arrest, and all subsequent proceed- 
ings against the Porto Alexandre and freight, be set aside, but 
the proceedings against the cargo should stand. The learned 
judge was only concerned with the question of the ship, and this 
appeal has only reference to the ship. 

The vessel in question was on a voyage from Lisbon to Liver- 
pool, and she ran aground in the Mersey and three tugs were 
engaged to get her off. An action was brought, and the ship 
was arrested in respect of the services rendered to her by these 
tugs. The application which the learned judge granted was 
founded upon the contention that the vessel was the property of 
a sovereign state, the Republic of Portugal, and on that ground 
that she was exempt from arrest. The conclusion of fact at 
which the learned judge arrived was that it had been established 
that the ship was the property of the Portuguese Government at 


the time of the arrest, and is still their property, and on that 
ground he made the order. 

It is now contended that it is not sufficient for a sovereign or 
a sovereign state to allege that a vessel is the property of such 
sovereign or sovereign state, and that the allegation must go 
further and say the vessel is employed in the public service or on 
public service. ([1920] P. 30; see also, 1923 N. W. C, Interna- 
tional Law Decisions, p. 51.) 

The court further said: 

In the days when the early decisions were given, no doubt 
what were called government vessels were confined almost en- 
tirely, if not exclusively, to vessels of war. But in modern times 
sovereigns and sovereign states have taken to owning ships, which 
may to a still greater extent be employed as ordinary trading 
vessels engaged in ordinary trading. That fact of itself indi- 
cates the growing importance of the particular question, if ves- 
sels so employed are free from arrest. * * * 

If ships of the state find themselves left on the mud because 
no one will salve them when the state refuses any legal remedy 
for salvage, their owners will be apt to change their views. 

Treaty with Siam, 1920.— -The treaty with Siam of 1920 
definitely refers to salvage of a vessel of war : 

Art. X. * * * If any ship of war or merchant vessel of one 
of the high contracting parties should run aground or be wrecked 
upon the coasts of the other, the local authorities shall give 
prompt notice of the occurrence to the consular officer residing in 

the district, or to the nearest consular officer of the other power. 

* * * 

* * * such consular officers, owners, or agents shall pay 
only the expenses incurred in the preservation of the property, to- 
gether with the salvage or other expenses which would have been 
payable in the case of the wreck of a national vessel. (42 U. S. 
Stat, Pt. II, p. 1931.) 

Resume. — In general, the law of the United States pro- 
hibits advanced payment for services or articles pur- 
chased. Of course, certain articles and services necessary 
for the carrying on of the ordinary business of the Gov- 
ernment, such as payment for tolls, transportation in case 
of need, and the like, may require advanced payment. 

In general, mariners are under no legal obligation to 
render aid to vessels in distress merely for the sake of 


saving property, though there is a recognized obligation 
to make every effort to save life. 

In the case of the Pamto, the local tugs do not refuse to 
aid in pulling the vessel off, but they do demand payment 
in advance. Under ordinary circumstances the obliga- 
tion would be to communicate with and arrange for aid 
through the local consul at port P. The local consul 
would arrange for aid through the local authorities. The 
local authorities are not functioning. Accordingly the 
tug owners may be pursuing the only course that seems 
rational to them in demanding advance payment. 

Under the general rules of admiralty, this might be 
regarded as action in duress, but admiralty courts pro- 
vide that in such cases refunds in case of excessive charge 
shall be made. The advance payment, therefore, would 
not necessarily differ in amount from the equitable al- 
lowance which would be awarded by the court. 

The tug owner may also be aware of the fact that he 
can not bring a public vessel before the court and that if 
he receives any pa3^ment at all, it may be after costly 
proceedings. There would, however, be practically no 
risk to the Paxto as the public vessel might bring the 
tug owner before the court in case of excessive charges. 

The law of the United States forbidding advance pay- 
ment in no way applies to the owner of a foreign tug, nor 
does it place him under any obligation to render service. 

Salvage awards have been made to vessels in the naval 
service after July 1, 1918. (40 U. S. Stat., p. 705 ; see also 
suits in admiralty act, March 9, 1920, U. S. Comp. Stat., 
c. 95, sec. 1251%; salvage act, August 1, 1912, U. S. Comp 
.Stat., c. 268, sec. 2, sec. 7991.) 

Salvage has also been awarded to other public vessels 
not strictly in the life-saving service. Salvage awards 
have also been made to vessels of the United States Ship- 
ping Board. (The Impoco, 287 Fed., 400.) 

Owing to the fact that the local authorities are not 
functioning, the contract and its performance remains 

69574 — 31 7 


wholly within the authority of the commander of the 


(b) Pay for the salvage service in advance and require 
by force, if necessary, the rendering of the service for 
which payment is made. 

(c) Deserters. 

Act of March 4, 1915. — In 1915 an act was passed in 
the United States by which the provisions in regard to 
treatment of deserters embodied in existing treaties were 
to be terminated. 

Sec. 16. That in the judgment of Congress articles in treaties 
and conventions of the United States, in so far as they provide 
for the arrest and imprisonment of officers and seamen deserting 
or charged with desertion from merchant vessels of the United 
States in foreign countries, and for the arrest and imprisonment 
of officers and seamen deserting or charged with desertion from 
merchant vessels of foreign nations in the United States and the 
Territories and possessions thereof, and for the cooperation, aid, 
and protection of competent legal authorities in effecting such 
arrest or imprisonment, and any other treaty provision in con- 
flict with the provisions of this act, ought to be terminated, and 
to this end the President be, and he is hereby, requested and 
directed, within 90 days after the passage of this act, to give notice 
to the several governments, respectively, that so much as herein- 
before described of all such treaties and conventions between the 
United States and foreign governments will terminate on the 
expiration of such periods after notices have been given as may 
be required in such treaties and conventions. 

Sec. 17. That upon the expiration after notice of the periods 
required, respectively, by said treaties and conventions and of 
one year in the case of the independent state of the Congo, so 
much as hereinbefore described in each and every one of said 
articles shall be deemed and held to have expired and to be of 
no force and effect, and thereupon section 5280, and so much of 
section 4081 of the Revised Statutes as relates to the arrest or 
imprisonment of officers and seamen deserting or charged with 
desertion from merchant vessels of foreign nations in the United 
States and Territories and possessions thereof, and for the co- 
operation, aid, and protection of competent legal authorities in 
effecting such arrest or imprisonment shall be, and is hereby, 


Sec. 18. That this act shall take effect as to all vessels of the 
United States, 8 months after its passage, and as to foreign ves- 
sels 12 months after its passage, except that such parts hereof 
as are in conflict with articles of any treaty or convention with 
any foreign nation shall take effect as regards the vessels of 
such foreign nation on the expiration of the period fixed in the 
notice of abrogation of the said articles as provided in section 
16 of this act. (38 U. S. Stat. Pt. I, p. 1184.) 

In accordance with the act of March 4, 1915, the Presi- 
dent gave notice of the termination of the treaties in con- 
travention of the act, and regulations brought the act 
into operation. 

Arrest of deserters. — By an act of June 4, 1920, provi- 
sion was made for arrest within the United States of 
deserters from the military service of the United States. 

Art. 106. Arrest of deserters oy civil officials. — It shall be law- 
ful for any civil officer having authority under the laws of the 
United States, or of any State, Territory, District, or possession 
of the United States, to arrest offenders, summarily to arrest a 
deserter from the military service of the United States and de- 
liver him into the custody of the military authorities of the United 
States. (41 U. S. Stat., p. 808.) 

This act is, however, merely domestic legislation and 
does not apply to deserters from foreign vessels. 


(c) Inform the master of the Comet that under the act 
of March 4, 1915, no marines may be detailed to appre- 
hend the deserters. 

(d) Closure of ports. 

Closure of ports. — The closure of ports in the time of 
peace for various reasons is admitted as a legitimate act 
of a state. In time of war closure of ports by effective 
blockade has long been an unquestioned right. The clo- 
sure of ports in time of insurrection by the declaration of 
an authority not having effective control is usually re- 
garded as of no effect. The situation in Nicaragua in 
1910 led also to some discussion and statements in regard 
to closure of ports. This was in part embodied in a com- 


munication from Mr. Wilson, the Acting Secretary of 
State, to Mr. Peirce, the minister to Nicaragua : 

Department of State, 

Washington, July 22, 1910. 

Mr. Wilson instructs Mr. Peirce immediately to hand to the 
minister for foreign affairs a copy of the following reply which 
has been sent in answer to inquiries from American companies 
and copy of which has been given also to the Norwegian charge 
d'affaires in Washington with further explanation of the situation : 

" The Bluefields Steamship Co., as charterer of Norwegian 
steamers carrying American goods, and seven American firms 
as shippers have represented that the Norwegian Government has 
given instructions to Norwegian consuls with the result that 
agents and captains have been notified by Norwegian consular 
officers that the Government of Norway has been informed of the 
closing of the port of Bluefields", in Nicaragua, which is in the 
territory under the de facto control of the Estrada faction, by 
authority of orders made by the Madriz faction last October and 
on May 16, and that such agents and captains have been warned 
that the Norwegian Government can not protect them from any 
consequences which may follow in disregard of such orders of 
closure. These firms represent that this situation means the 
crippling of very important commercial and other American in- 
terests on those coasts. 

11 ' Official reports just received from Bluefields seem to indicate 
that the reported action of Norway may have been based upon 
erroneous information. In the first place, it is now a well- 
settled and recognized principle of international law that ports 
in the possession of hostile forces can not be closed to foreign 
commerce by mere executive decrees of closure unless such de- 
crees are followed and supported by effective blockades of the 
ports so closed. It would, therefore, seem that the reported 
Madriz decrees of October 13 and May 16, closing the port of 
Bluefields, are, in the absence of effective blockade at that port, 
devoid of effect or influence upon neutral commerce. In the sec- 
ond place, it would appear that even should a foreign govern- 
ment recognize the right of blockade by a ship of the character 
of the Venus, apparently the only blockading force possessed by 
Madriz, nevertheless as it is notorious that the Venus has, since 
her appearance at that port, been absent from Bluefields for 
long periods, on which occasions she is reported to have violated 
the rules of international law by bombarding other unfortified 
Mcaraguan towns, and also to have committed other acts of 
hostility, all so far from her base at Bluefields, it would appear 


clear that were the contemplated blockade of Bluefields ever 
effective, it has long since ceased to be so, and is therefore without 
any value in international law, Bluefields now being under these 
circumstances an open port. 

"As for the question of protection of American chartered ships 
and American cargoes by the United States, you are referred to 
the telegram from the Secretary of State to the Bluefields Steam- 
ship Co., under date of November 18, 1909 : ' If the announced 
blockade or investment of the Nicaraguan port of San Juan del 
Norte (Grey town) is effectively maintained and the requirements 
of international law, including warning to approaching vessels, 
are observed, this Government would not be disposed to interfere 
to prevent its enforcement. A naval vessel will be ordered to 
Greytown to observe and report whether the blockade is effective.' 
To the letter of the Secretary of State to the Secretary of the Navy, 
dated May 24, 1910, which contained the following proposed in- 
struction to Commander Gilmer, which instruction was given : 
' The United States policy as to the blockade at Bluefields, whose 
uimouncement by the Madriz faction would seem to constitute a 
recognition on their part of the belligerency of the Estrada fac- 
tion, will naturally be the same as that laid down in regard to 
the blockade at Greytown by the Estrada faction. The Secretary 
of State then held that if the announced blockade or investment 
was effectively maintained, and the requirements of international 
law, including warning to approaching vessels, were observed, the 
United States Government would not be disposed to prevent its 
enforcement, but reserved all rights in respect to the validity of 
any proceedings against vessels as prizes of war. In the present 
instance it should, however, be observed that a vessel which, by 
deceiving the authorities at a port of the United States, sailed 
therefrom in the guise of a merchantman, but had in reality 
been destined for use as a war vessel, by such act has forfeited 
full belligerent rights, such as the right of search on the high seas 
and of blockade.' Also the letter of the Secretary of State to the 
Secretary of the Navy as of June 3, regarding a proposed in- 
struction to Commander Gilmer, which instruction was also 
given : • This Government denies the right of either faction to 
seize American-owned vessels or property without consent of and 
recompense to the owners. In such cases, if you can ascertain 
ownership, you will instantly act in accordance with this policy.' 
And the letter from the Secretary of the Navy to the Secretary 
of State of June 7, containing the notifications issued by Com- 
mander Gilmer under date of June 3 : ' I received a communica- 
tion to-day from General Rivas, commanding Madriz forces, Blue- 
fields Bluff, stating that certain vessels have been used by Es- 


trada forces and that he would not permit vessels of Bluefields 
Steamship Co., Atlantic Navigation Co., Bellanger Co., and Cukra 
Co., all American companies, to pass through the waters held by 
Madriz forces. I informed him that Estrada had the right to 
use these vessels with consent of owners if properly remunerated, 
but while so used Rivas had the right to capture or destroy them ; 
but when in the company's legitimate trade I would permit no 
interference with them. I have ordered guard American marines 
or sailors on vessels passing bluff when in legitimate trade. Have 
informed Rivas that if they were fired upon I would return the 
fire and would seize the Venus and San Jacinto, and that I would 
permit no interference with shipping of American firms in legiti- 
mate business.' " (1910 U. S. For. Rel., p. 756.) 

In 1912 the Acting Secretary of State wrote to the 
Mexican ambassador in regard to a port in the hands of 
an insurgent, saying: 

I beg to inform you that, under the rules of international law, a 
foreign port in the hands of insurgents (except where ingress or 
egress from such port is physically prevented by blockade or 
otherwise by the parent Government) is regarded as if it were 
still in the hands of the parent Government and so open to the 
intercourse and commerce of other nations. (1912 U. S. For. Rel., 
p. 736.) 

Later in a communication to the charge d'affaires in 
Mexico the Acting Secretary said : 

Department of State, 
Washington, October 23, 1912 — 1 p. m. 

Consul at Vera Cruz has received a communication from the 
commandery of the fleet and late collector of customs, stating: 
(1) That they had sent tug to meet American steamer Seguranza 
to notify the master that the port was closed by order of the 
Federal Government, as provided by section 6 of customs regula- 
tions, but that master insisted upon entering to consult with con- 
sul ; (2) that war material might be among the cargo of the 
Seguranza, which under no circumstances should be unloaded, as 
port is closed to all legal transactions of loading and unloading; 
(3) that on account of the existing conditions said steamer should 
remain a very short time, so as to avoid exposure to possible 
accidental damage, which might give rise to claims, thereby strain- 
ing the existing friendly relations. 

You will inform the Mexican Government that the department 
understands that insurrectionary forces have taken and are now 


in possession of Vera Cruz. With reference to the closure by 
mere executive or legislative act of Mexican ports held by insur- 
gents, you will communicate to the foreign office the following 
as the position of the United States: 

"As a general principle a decree by a sovereign power closing 
to neutral commerce ports held by its enemies, whether foreign 
or domestic, can have no international validity and no extra- 
territorial effect in the direction of imposing any obligation upon 
the governments of neutral powers to recognize it or to con- 
tribute toward its enforcement by any domestic action on their 
part. If the sovereign decreeing such a closure have a naval 
force sufficient to maintain an effective blockade, and if he duly 
proclaim and maintain such a blockade, then he may seize, subject 
to the adjudication of a prize court, vessels which may attempt 
to run the blockade. But his decree or acts closing ports which 
are held adversely to him are by themselves entitled to no inter- 
national respect. The Government of the United States must 
therefore regard as utterly nugatory such decrees or acts closing 
ports which the United States of Mexico do not possess, unless 
such proclamations are enforced by an effective blockade." (Ibid., 
p. 901.) 

The right to close ports except by effective blockade 
was also denied to Ecuador. 

Renouncing protection. — A state has sometimes re- 
quired that aliens agree not to claim protection of the 
states of which they are nationals as a condition under 
which they may reside and do business within the terri- 
tory of the state. Some states have had laws to this 
effect, as in the Venezuelan constitution of 1893 : 

Art. 9. Foreigners are entitled to enjoy all the civil rights 
enjoyed by natives ; and they shall be accorded all the benefits of 
said rights in all that is essential as well as in the form or 
procedure, and the legal remedies incident thereto, absolutely in 
like manner as said natives. 

Art. 149. No contract of public interest celebrated by the National 
Government or by that of the States can be transferred, in whole 
or in part, to a foreign government. In every contract of public 
interest there shall be inserted the clause that " doubts and 
controversies that may arise regarding its meaning and execution 
shall be decided by the Venezuelan tribunals and according to 
the laws of the Republic, and in no case can such contracts be 
a cause for international claims." (1893 U. S. For. Rel., p. 733.) 


Cases where attempts were made to cause a citizen to 
divest himself of his right to protection by his state arose 
frequently during the time when Mr. Bayard was Secre- 
tary of State. Secretary Bayard in varying words an- 
nounced the principle : " No agreement by a citizen to 
surrender the right to call on his Government for pro- 
tection is valid either in international or municipal law. n 
(1887 U. S. For. Eel., p. 100.) While it may not be 
within the province of a Secretary of State of the United 
States to pronounce upon the municipal law of a foreign 
state, the opinion of Mr. Baj^ard as to international law 
has received general support. 

An extended study of the responsibility of states was 
made and appeared in a report of research preparatory 
to the codification of law on responsibility of states for 
damages done in their territory to the persons or property 
of foreigners. At the end of the report presented by 
Professor Borchard on article 17, which read, "A state 
is not relieved of responsibility as a consequence of any 
provision in its own law or in an agreement with an alien 
which attempts to exclude responsibility by making the 
decisions of its own courts final; nor is it relieved of 
responsibility by any waiver by the alien of the protec- 
tion of the state of which he is a national," it was said : 

What conclusion may be drawn as to the effect of the renuncia- 
tory clause? 

The prevailing view seems to be that the mere stipulation to 
submit disputes to local courts is confirmatory of the general rule 
of international law and will be so construed by the national 
government of concessionaries. If, however, the renunciation goes 
so far as to preclude recourse to diplomatic protection in cases 
of denial of justice, the renunciation of protection will not be 
considered as binding upon the claimant's government ; for as in 
municipal law private agreement can not oust the jurisdiction 
of municipal courts, so in international law the private agree- 
ment can not prevent the employment of international remedies. 
Again, if there has been a confiscatory breach of the contract by 
the government, the claimant will be relieved from the stipula- 
tion barring his right to make the contract the subject of an 
international claim. While some arbitrators, notably Umpire 


Barge, seem to have evolved the rule that the clause is binding 
upon the claimant, but not on his government, it is difficult to 
see how such an inconsistent rule can be applied, and in fact 
these arbitrators have taken jurisdiction of claims in such cir- 
cumstances and made awards. Finally, the right of the govern- 
ment to submit the claims of its citizens to an international tribu- 
nal, is, it may be concluded, superior to the right or competency of 
the individual to contract it away, for whatever the individual's 
power to renounce a personal right or privilege, he does not repre- 
sent the government, and is therefore incompetent to renounce a 
right, duty, or privilege of the government. In sum total, there- 
fore, the better opinion seems to be that the renunciatory clause 
is without any effect so far as any changes or modifications in 
the ordinary rules of international law are concerned. (1929 
Amer. Jour. International Law, Spec. Sup., p. 215.) 


(d) Escort the Western into port guarding against the 
furnishing of aid to either party in state A. The agree- 
ment of Mr. B with the authorities of state A has no 

Situation III 


The United States, states X, Y, C, and D have ratified 
the Washington treaty of 1922 limiting naval armament 
and the London treaty of 1930. States X and Y are at 
war. Other states are neutral. The British Secretary 
of State for Foreign Affairs in a communication to the 
French, Italian, and Japanese ambassadors, October 7, 
1929, stated that the Kellogg-Briand pact of 1928 was 
" regarded as the starting point of agreement," and that 
it was hoped that the conference of 1930 would elaborate 
a text " which will facilitate the task of the League of 
Nations preparation commission and of the subsequent 
general disarmament conference." 

(a) The commander of an aircraft of state X summons 
by radio a merchant vessel of a citizen of the United 
States, the Trader, to lie to and to wait the arrival of 
a submarine which it is also summoning by radio. The 
Trader lies to in obedience to these orders. The aircraft 
leaves before the arrival of the submarine and the Trader 
then proceeds. The submarine, later meeting the Trader, 
torpedoes and sinks that vessel Avithout warning. 

(b) The commander of the Hail, a cruiser of state X 
in a port of the state of Panama, desires to test an air- 
craft that has been delivered to the Hail at another port 
and proceeds to a trial flight from the Hail, though the 
authorities of the port protest. 

(1) How far in (a) and (b) above is the action of the 
belligerent lawful; and (2) what, if any, action should 
be taken by the commanders of cruisers of the United 
States which chance to be near? 


(c) If the commander of the cruiser of the United 
States in the port of the state of Panama takes no action 
in regard to the conduct of the Hail, should the authori- 
ties of the Panama Canal Zone take any action when the 
Hail enters to pass through the Canal % 


(a) (1) The action of the submarine is not lawful, 
and (2) the cruiser of the United States should afford 
such aid as possible in rescuing the personnel of the 
Trader and report the circumstances in detail to the 
proper authority. 

(b) The action of the commander of the Hail in pro- 
ceeding to a trial flight of the aircraft in a port of the 
state of Panama is not lawful. The commander of the 
cruiser should report the circumstances in detail to the 
proper authority and await instructions. 

(c) The authorities of the Panama Canal Zone should 
detain the Hail, not allowing the vessel to enter the canal 
without instructions from the proper authorities to whom 
the circumstances in detail should be reported. 


(a) Law of aerial warfare. 

Law of aerial warfare. — Many writers have pointed 
out that the law of the air may be more nearly analogous 
to maritime law than to land law and that this may be 
true both for the time of peace and for the time of war. 
Some of the writers also properly point out that while 
there may be analogies these should not be regarded as 
anything more than analogies. To regard the laws as 
identic would lead to serious errors. Even the law of 
gravity must receive different recognition, and aircraft 
differ widely from seacraft, whether surface or subsur- 
face. Time and space may also be less important factors. 
Days of grace for private aircraft of the enemy will 


doubtless be taken for granted. Aerial bombardment 
will not be limited to the coast. 

For warfare in and from the air certainly the rules 
should be no less strict than for maritime warfare- 

If war is to continue, aerial warfare will be allowed. 
In this warfare aircraft will be used against other mili- 
tary air, surface, and subsurface craft, fortifications, etc. 
The hope that aerial warfare will be prohibited can not 
be entertained under present conditions. Aircraft have 
done much to reduce the significance of time and space 
in the conduct of war, and these factors may often de- 
termine the issue. Objection to new means of warfare 
have always been made, but in time of war the question 
is one of military effectivity. The means of delivery of 
an explosive shell, whether by aircraft or by gun, does 
not constitute the measure of its legality. Whether the 
projectile acts under the force of gravity in a vertical 
flight downward or makes a parabolic flight is not a 
legal question. 

Aircraft in war,— The development of aircraft since 
1900 has been so rapid that it is reasonable to assume 
that it will be an increasingly important factor in war. 
It may serve as " the eyes of the fleet," " the advance 
patrol," " the antennae," or in other significant roles at 
sea, and on land may introduce revolutionary methods 
of warfare, while for coast warfare the aircraft may 
supplement in many ways the land and sea forces. 

Commerce may be interrupted in a manner hitherto 
impossible, and an economic war may become more effec- 
tive. Some have advocated measures of control by bellig- 
erents which would to varying degrees restrict that 
freedom of the sea of which the United States has long 
been an advocate. 

Aerial commerce makes old rules in regard to contra- 
band, blockades, etc., of doubtful applicability. 

Feasibility of use of aircraft. — It has often been said 
that owing to the fragile nature of aircraft their use for 


visit and search was not feasible. Doubtless this is in 
great measure true if the aircraft must be self-sufficient 
for the exercise of visit and search. There were, however,, 
cases reported during the World War in which aircraft 
did make or aid in making captures, and much that has 
been said in regard to the nature of aircraft as instru- 
ments of war has also been said in regard to submarines. 

The Gelderland, a Dutch steamer, was captured by a 
German aircraft on the high sea, July 23, 1917, and 
brought to Zeebrugge. The Hamburg prize court de- 
clared the Gelderland good prize. Other captures were 
made and the transfer of prize crews from aircraft to 
captured vessels were reported. 

The problems of visit of a maritime craft by an air- 
craft would be many and would depend upon the state of 
the sea and other conditions, and for visit of submarine 
craft would be more difficult even if possible. Probably 
visit at the place of summons would be rarely possible. 

The French delegation had proposed to the commis- 
sion of jurists, 1923, that " aircraft are forbidden to op- 
erate against merchant vessels, whether surface or sub- 
marine, without conforming to the rules to which surface 
warships are subject." Manifestly the visit and search 
of a submarine by an aircraft would present many diffi- 
culties, and it is doubtful if the American point of view 
of visit where encountered could be followed in cases suf- 
ficient to warrant the use of aircraft for such purpose. 
To a less degree this would be true of surface vessels. 
Even if the exceptional right of diversion under the pro- 
posed British article had been accepted, the nature of 
aircraft would tend to convert the exception into the rule. 

Aircraft may, however, be of great service as auxiliary 
agencies of a fleet or of a surface vessel of war in locating 
merchant vessels of the enemy or of neutrals and even in 
escorting them to a place for visit and search. If this be 
regarded simply as an extension of the normal range of 
vision or gunfire of the summoning vessel, it is reasonable 
to admit that such a case would be action of the surface 


vessel of war, and would therefore conform to the laws 
for surface craft. 

Summons by aircraft. — Summons of a merchant vessel 
is the means by which the attention of such a vessel is 
drawn to a vessel of war which desires to communicate 
with the merchant vessel. The summons may be by sig- 
nal flag or by any other effective method. There is not 
any necessary implication that the use of force is con- 
templated. Visit and search may or may not follow the 
summons. There seems to be no reason why the use of 
radio may not be as lawful as any other means of attract- 
ing attention or why an aircraft may not summon a mer- 
chant vessel as well as any other craft. 

Aircraft as an cmxiliary. — It has been proposed that 
aircraft be used only as auxiliary to land and naval forces 
and subject to the same rules and limitations. It may be 
pointed out that land and naval rules are not identical 
and that many of the differences are due to the inherent 
differences in land and water. Similarly the differences 
in the nature of air as compared with land or water will 
force recognition of different rules for its use, though 
certain broad principles may be common to the three. 
That operations of aircraft in time of war should not be 
inhuman may be admitted, but that the definition of in- 
human may be the same for all can not be presumed. 
Many would press the law of self-preservation as ap- 
plied to personal safety as analogous to state safety and 
hold that necessity of self-preservation of a state knows 
no law, while it may be capable of proof in a given case 
that the nationals of the state and the world at large 
would be better off if a named state did not exist or if 
it should be absorbed by another. Such rules as apply 
to torpedoes in naval warfare manifestly can not be 
made to apply without modification to aircraft projectiles. 
There are many lines in which analogy with land or mari- 
time rules will not hold for war by air. 

The cutting off of communications by siege or blockade 
has been long recognized as lawful warfare on land and 


sea. The same must be admitted for aerial warfare. 
The destruction of a maritime supply ship of an enemy 
by a vessel of war of an opponent would be permitted, 
and it would not be unlawful for an aircraft to destroy 
such a ship. The capture and destruction of an enemy 
supply train or ammunition base on land would be law- 
ful for land or air forces. 

The significant fact that air forces may operate in spite 
of and independently of land or naval forces must be 
evident from experience and from plans which have been 
developed. That the three may operate most effectively 
in cooperation under certain conditions is not denied. 
The life of a nation both on land and sea no longer de- 
pends upon strategic fortifications along the coast and 
land frontier and naval patrols. Indeed an armed 
enemy convoy may, while offering protection against 
maritime attack, be specially vulnerable to air attack. 

That aircraft may be used as an agent to weaken the 
civilian as well as the miltary morale of an enemy seems 
to require no proof, but in both cases this conduct must 
be kept within the law. Military objectives as legal 
objects of attack by land or naval forces, may be fairly 
easily classified. Objectives of the same nature must be 
admitted as legitimate for aircraft ; e. g., military, naval, 
and aerial bases, supply bases, ammunition manufac- 
tories etc., and the location of these, whether inland from 
the coast or frontier, whether defended or undefended, 
would for aircraft be a matter of less importance than 
to other forces. 

That aircraft should be considered in legal aspects 
merely as auxiliary to land and naval agencies and bound 
by exactly the same rules seems an untenable proposition. 

Aircraft attached to vessels of tour. — In 1915 the Ger- 
man cruiser Konigsberg was destroyed in a German East 
African river. Aircraft aided in locating and spotting 
the shots from the British vessels which were out of sight 
of the Konigsberg. The aircraft belonged to the Eoyal 
Naval Air Service but had been lent to the vessel of 


war. When the question of distribution of prize bounty 
came before the court, it was decided that the pilots and 
the observers belonging to the two airplanes formed a 
part of the crews " of the vessels of war and were entitled 
to shares of the prize bounty. (3 Grant, Br. and CoL 
Prize Cases, p. 135.) 

Aircraft on vessels of war. — There were examples of 
the use of aircraft as aids to operations against merchant 
vessels in the World War. The Wolf, a German steamer, 
had been fitted to pre}^ on enemy commerce in 1916. The 
Wolf was also to lay mines, which she did in widely sepa- 
rated areas. The aircraft Wolfchen was a part of the 
steamer's equipment. The Wolfchen was found of great 
service in scouting and observation, discovering the prox- 
imity or absence of other vessels. 

On the 27th of May, 1917, when the Wolf was making 
repairs near an uninhabited island in the South Pacific,, 
the Wolfchen was sent out to bring in a steamer which 
had been sighted. The Wolfchen dropped orders on the 
deck of the steamer, the Wairtma of New Zealand, and 
this steamer was brought to anchor near the Wolf. 

Later the Hitachi Maru, with a valuable cargo, was lo- 
cated by the Wolfchen, and the vessel was subsequently 
taken. (Cruise of the Wolf, translated from Ri vista 
Marittima in 67 Jour. Royal United Service Institutions, 
p. 140.) 

Washington proposals, 1922. — The attempt to elabo- 
rate rules in regard to submarines at the Washington Na- 
val Conference, 1921-22, enunciated certain principles 
that failed of ratification as declaratory of international 
law. These rules were presented to the conference with- 
out reference to the committees to which other conventions 
were submitted and contained clauses to which ob- 
jections were made in the meetings of the delegates them- 
selves. Indeed, it is generally admitted that the treaty, 
if it had become operative, would have been difficult to 
interpret. In any case this Washington treaty seems to. 
provide for deviation after seizure. 


Discussion in 1923. — At The Hague Conference on 
Kules of Warfare, 1923, there was much discussion of 
the subject of deviation and visit and search by aircraft. 
In the Washington treaty of 1922 in regard to submarines 
and noxious gases there had been inserted a provision to 
the effect that "A merchant vessel must not be attacked 
unless it refuse to submit to visit and search after warn- 
ing or to proceed as directed after seizure." As Judge 
Moore said : 

From first to last the American delegation consistently de- 
clined to enter into the interpretation of the provisions of the 
Washington treaty relating to submarines. This did not, however, 
prevent the disclosure, among other things, of the fact that the 
treaty was interpreted by the British delegation and perhaps by 
the Italian not only as permitting the deviation of a merchant 
vessel from its course for the completion of a search which a 
preliminary visit and search on the spot and seemed reasonably 
to justify, but also as permitting deviation without any prelimi- 
nary visit and search or boarding whatsoever. The disclosure 
of this interpretation, which was elicited by inquiries of the 
Netherlands delegation, immediately rendered impossible the 
adoption by the commission of the terms of Article I of the 
Washington treaty on submarines without some additional safe- 
guard as an appropriate and adequate regulation for aircraft. 
(Moore, International Law and Some Current Illusions, p. 204.) 

American attitude, 1923. — The report of the committee 
of jurists considering the revision of the rules of war- 
fare and particularly radio and aircraft in 1923 gave con- 
siderable attention to the use of aircraft in connection 
with maritime warfare. The French delegation had 
maintained that aircraft " should conform to the rules to 
which surface warships are subject." 

The American delegation considered that a merchant vessel 
should be boarded when she is encountered, but maintained that, 
even if a departure from this rule might in exceptional circum- 
stances be permitted in visit and search by surface ships, a similar 
concession to aircraft, with their limited means of boarding, would 
readily have the effect of converting the exception into the rule. 
They stated that they were not advised of anything in the record 
of the Washington conference showing an intention to authorize - 
69574—31 8 


surface ships or submarines to divert merchant vessels, without 
hoarding them, to a port for examination ; but that, were the case 
otherwise, the Washington conference had decided that the sub- 
ject of aircraft, which presented difficulties of its own and which 
might involve questions different from those pertaining even to 
submarines, should be dealt with separately ; and that to permit 
aircraft, with their rapidity and range of flight, to control and 
direct by orders enforceable by bombing, and without visit and 
search, the movement of merchant vessels on the high seas would, 
in their opinion, give rise to an inadmissible situation. 

The American delegation, therefore, proposed the following 
text : 

"Aircraft are forbidden to visit and search surface or subsur- 
face vessels without conforming in all respects to the rules to 
which surface vessels authorized to conduct visit and search are 

" In view of the irregularities to which the use of aircraft 
against merchant vessels might give rise, it is declared that air- 
craft can not divert a merchant vessel from its course without 
first boarding it ; that in no event may an aircraft destroy a 
merchant vessel unless the crew and passengers of such vessel 
have first been placed in safety ; and that if an aircraft can not 
capture a merchant vessel in conformity with these rules it must 
desist from attack and from seizure and permit such vessel to 
proceed unmolested." (1924 N. W. C, International Law Docu- 
ments, p. 138.) 

British attitude, 1923. — The British attitude was natu- 
rally influenced by recent experiences in the World War 
and by some of the exceptional conditions that had then 
prevailed. This had been shown in discussions at the 
Washington Conference in 1921-22, and accordingly at 
The Hague in 1923. 

The British delegation maintained that the problem connected 
with visit and search of merchant vessels by aircraft was analo- 
gous to that of the exercise of such right by submarines, and that 
the most satisfactory solution of the problem would be to apply 
mutatis mutandis the wording of article 1 of the treaty signed 
at Washington on February 6, 1922, for the protection of the 
lives of neutrals and noncombatants at sea in time of war. 

This delegation maintained that by using the language of that 
treaty, as proposed, the question of the right to oblige a merchant 
vessel to deviate to a reasonable extent would be solved because 
the wording adopted at Washington had been modified so as to 

BRITISH ATTITUDE, 192 3 ' 107 

admit this right. The British delegates proposed the following 

" The use of aircraft against merchant vessels must be regu- 
lated by the following provisions, which, being in conformity with 
the rules adopted by civilized nations for the protection of the 
lives of neutrals and noncombatants at sea in time of war, are 
to be deemed an established part of international law : 

" 'A merchant vessel must be ordered to submit to visit and 
search to determine its character before it can be seized. 

" 'A merchant vessel must not be attacked unless it refuses to 
submit to visit and search after warning or to proceed as directed 
after seizure. 

11 'A merchant vessel must not be destroyed unless the crew and 
passengers have first been placed in safety. 

" ' Belligerent aircraft are not under any circumstances exempt 
from the universal rules above stated ; and if an aircraft can 
not capture a merchant vessel in conformity with these rules, 
the existing law of nations requires it to desist from attack and 
from seizure and to permit the merchant vessel to proceed unmo- 
lested.' " (1924 N. W. C, International Law Documents, p. 139.) 

This treaty of 1922 had been the subject of considerable 
discussion, which led to questions as to its meaning. It 
had been questioned whether the rules mentioned in the 
first paragraph had been adopted " for the protection of 
lives of neutrals and noncombatants at sea in time of 
war " or rather had been developed through a long period 
of time primarily for the security of property at sea. 
Question was raised as to whether a merchant vessel 
might be seized immediately after being ordered to sub- 
mit to visit and search without other action on the part 
of the seizing vessel. Such other questions have arisen as 
do the w^ords " proceed as directed after seizure " imply 
amply a verbal order; is the placing of the crew and 
passengers of a merchant vessel in safety the sole bar to 
its destruction ; what is a place of safety ; are any of the 
rules as stated universal ; does " existing law of nations " 
contain the requirements mentioned? Some have main- 
tained that the last clause is in contradiction to some of 
the earlier clauses. In any case it was not possible to 
reach an agreement on this article either for submarines 
or for aircraft. 


Italian attitude, 1923. — The Italian delegation at the 
Washington Conference had not shared the British view 
in regard to the place of submarines in war. At The 
Hague, however, in discussing rules for the use of air- 
craft for visit and search, 

The Italian delegation accepted the British point of view; it 
maintained that diversion of merchant vessels by surface war- 
ships was recognized and that the wording of the Washington 
treaty should be repeated. To prevent any abusive exercise of 
the right by aircraft, the Italian delegation proposed to add the 
following sentences to the paragraphs of the Washington treaty 
as set out in the British text. 

After the first paragraph add : 

" Visit must in general be carried out where the merchant vessel 
is first encountered. Nevertheless, in cases where it may be 
impossible to alight and there is at the same time good ground 
for suspicion, the aircraft may order the merchant vessel to 
deviate to a suitable locality, reasonably accessible, where she 
may be visited. If no good cause for this action is shown, the 
belligerent state must pay compensation for the loss caused by 
the order to deviate." 

After the third paragraph add : 

" If the merchant vessel is in the territorial waters of the 
enemy state and not on the high seas, she may be destroyed 
after previous notice has been given to the persons on board to> 
put themselves in a place of safety and reasonable time has been 
given them for so doing." (1924 N. W. C, International Law 
Documents, p. 140.) 

Japanese attitude, 1923. — The Japanese were not sc 
closely concerned with the narrower legal aspects of visit 
and search, though their courts had, when called upon, 
usually followed generally accepted rules. The opera- 
tion of any rules that might be proposed was, however, 
to them a matter of grave importance. The report of the 
commission says: 

The Japanese view was based on the practical difficulty in the 
way of exercise of the right of visit and search by aircraft. Visit 
and search is a necessary preliminary to capture, and unless an 
aircraft is physically capable of carrying it out, the recognition 
of the right of military aircraft to conduct operations against 

OPINIONS, 19 2 3 109 

merchant vessels may lead to a recurrence of the excesses prac- 
ticed against enemy and neutral merchant vessels in the sub- 
marine campaign initiated during the recent war. Therefore, 
the Japanese delegation preferred not to recognize the right at 
all. But in the end, as the amended American text removed the 
greater part of their fear of possible abuse, they expressed readi- 
ness to accept it, and suggested at the same time that the text had 
better be completed by the addition of the last sentence of the Brit- 
ish text. (1924 N. W. C, International Law Documents, p. 139.) 

Report of committee of jurists, 1923. — The committee 
of jurists considering the rules for aircraft in time of war 
particularly referred to The Hague Convention of 1907 
and the report of the committee of jurists specifically 
supports the right of a neutral to prescribe the use of its 
aerial space under penalty of internment. In general 
the proposed rules prohibit the entrance of belligerent 
aircraft to the jurisdiction of a neutral state, but the 
report says : 

While they remain on board the warship they form part of it, 
and should, be regarded as such from the point of view of regu- 
lations issued by the neutral states. They will therefore be 
allowed to enter the neutral jurisdiction on the same footing as 
the warship on board which they rest, but they must remain on 
board the warship and must not commit any act which the warship 
is not allowed to commit. (1924 N.W.C., International Law Docu- 
ments, p. 132.) 

Article 42 of the proposed rules states : 

A neutral government must use the means at its disposal to 
prevent the entry within its jurisdiction of belligerent military 
aircraft and to compel them to alight if they have entered such 

A neutral government shall use the means at its disposal to 
intern any belligerent military aircraft which is within its juris- 
diction after having alighted for any reason whatsoever, together 
with its crew and the passengers, if any. (Ibid., p. 133.) 

Division of opinion, 1923. — The commission of jurists 
in 1923 recognized the importance of rules in regard to 
visit and search by aircraft, and strove to reach an agree- 
ment, yet it was impossible to agree. 


When put to the vote the American proposal was supported 
by the Japanese and Netherlands delegations and opposed by the 
British, French, and Italian. The French proposal was opposed 
by the American, British, Japanese, and Netherlands delegations. 
The British and Italian delegations explained that they could 
only support it if it was amplified in the way indicated in the 
British and Italian amendments. 

Although all the delegations concurred in the expression of a 
desire to adopt such rules as would assure the observance of the 
dictates of humanity as regards the protection of the lives of 
neutrals and noncombatants, the commission, by reason of a di- 
vergence of views as to the method by which this result would 
best be attained, was unable to agree upon an article dealing with 
the exercise of belligerent rights by aircraft against merchant 
vessels. The code of rules proposed by the commission, therefore, 
leaves the matter open for future regulation. (1924 N. W. C, In- 
ternational Law Documents, p. 141.) 

The American proposal had prohibited diversion, 
while under the British it had not been prohibited. The 
requirement which might be read into the words " pro- 
ceed as directed after seizure " was not settled. 

Aircraft and deviation. — The changing relations of 
neutral commerce in time of war owing to changes in 
instruments and methods of war has been particularly 
marked since 1900. Submarines and aircraft are among 
the new agencies. Of the effect of aircraft Spaight says : 

Deviation is likely to become the rule, not the exception, in 
future. Visit and search at sea by aircraft will always 1 probably 
be difficult. The ransacking of a liner will certainly be a prac- 
tical impossibility. Even if visit sur place is declared obligatory, 
it is unlikely to be anything but perfunctory. But most prob- 
ably there will be no visit at all. Ships will be ordered to named 
ports, and if they take the risk of disobeying the order and per- 
sist in disobeying it, they will be attacked and perhaps sunk. 
The conditions of 1915-1918 may be reproduced in an aggravated 

The position of neutral commerce will indeed be well-nigh 
intolerable. Freedom of the sea will be dead and gone. Neutral 
shipping will be policed and dragooned as it never has been before. 
It was scourged with whips in 1914-1918 ; it will be scourged 
with scorpions in a future war. Because the complete interrup- 
tion of all neutral trade beneficial to the enemy will be more 


important than ever, because the grip on that trade will be tighter 
than ever and evasion more difficult, the conflict of belligerent 
and neutral interests will be sharper, the consequent disputes 
more bitter, and the danger of actual war with neutral states 
greater than in the past. (Aircraft and Commerce of War, p. 52.) 

Keferring to the unratified treaty, Washington Confer- 
ence of 1922, on submarines and noxious gases, Spaight 
said in 1924 : 

The second paragraph of Section I of Article I prohibits attack 
upon a merchant vessel unless she refuses (a) to submit to visit 
and search after warning, or (b) to proceed as directed after 
seizure. The apparent implication of this provision is that she 
may not be attacked if she refuses to proceed as directed before 
seizure. But such a deduction would not be a justifiable one to 
draw. According to a statement made by the British delegation 
at The Hague in 1923 and recorded in the report of the commis- 
sion of jurists, the original wording of the article was modified 
for the express purpose of allowing a warship to compel a mer- 
chant vessel to proceed to a designated place for visit and search ; 
that is, to " proceed as directed " before seizure. The right to 
impose a reasonable degree of deviation before ever the vessel was 
boarded was fully recognized and was preserved, according to the 
British view, in Article I of the treaty. (Air Power and War 
Rights, p. 468.) 

Discussion in 1927. — In the discussions at the Naval 
War College in 1927 the subject of visit and search re- 
ceived considerable attention (International Law Situa- 
tions, pp. 43-72), and the conclusion reached was that — 

Under existing international law the movements of neutral 
vessels on the high seas are subject to belligerent direction only 
when under belligerent control by a prize crew or escorting 
vessel. (Ibid. p. 72.) 

It was shown that there had been many new practices 
during 1914-1918, but in the resume it was said : 

If there is a right of visit and search, and that is at the present 
time admitted, there must be conceded the opportunity and con- 
ditions making its exercise possible. This would imply the right 
to take the visited vessel to smooth or safe water, or to escort 
it to such a place, or to retain the custody of the visited vessel 
till arrival of a force adequate to exercise visit and search. 


The sending of a vessel into port under a prize crew or escort 
presupposes a suspicion of liability to prize proceedings based on 
information in possession of the visiting vessel at the time. Sus- 
picion that all vessels may be found liable is not sufficient ground 
for indiscriminately sending in of merchant vessels. (Ibid, p. 71.) 

Preparatory disarmament conference. — In a draft con- 
vention for the preparatory disarmament conference in 
article 19 the provisions of article 14 of the Washington 
treaty limiting naval armament received some attention, 
repeating article 14. The draft convention reads : 

Art. 19. No preparation shall be made in merchant ships in time 
of peace for the installation of warlike armament for the purpose 
of converting such ships into vessels of war, other than the neces- 
sary stiffening of decks for the mounting of guns not exceeding 
6.1 inches (155 mm.) in caliber. 

[134. Article 19 gave rise to a short discussion. This article, 
which provides that no preparation shall be made in merchant 
ships for the installation of warlike armaments for the purpose 
of converting such ships into vessels of war, nevertheless author- 
izes the stiffening of decks for the mounting of guns not exceed- 
ing 6.1 inches (155 millimeters) in caliber. This exception to the 
rule as stated was finally adopted. The Japanese delegation, 
however, reserved the right to raise the question of the limitation 
of aircraft equipment on merchant vessels, possibly at the confer- 
ence itself. The Soviet delegation emphasized the importance of 
laying down that no preparations shall be made in merchant ships 
with a view to converting such ships in war time into fighting 
units.] (U. S. Treaty Information Bulletin No. 16, January, 
1931, p. 20.) 

Demotion for visit and search. — A certain degree of 
deviation for visit and search has always been admitted 
as lawful. Such deviation has been common when, be- 
cause the state of the sea made it impossible to visit and 
search when the summoned vessel has come to, the vessel 
is escorted to a safer place. This is not an arbitrary act 
of the visiting vessel. The ordering of a neutral vessel 
to go to a port for examination as has been proposed at 
times is an exercise of authority which a belligerent craft 
does not possess. 

A surface or submarine vessel of war is not to be 
allowed to deviate a merchant vessel from its course un- 


less a prize crew is put on board or an escort is furnished. 
A mere order is of no effect, as the merchant vessel is not 
subject to the orders but may be under the physical con- 
trol of a vessel of war so long as that is effective. Until 
other rules are accepted, this principle would apply to 
aircraft. The physical presence of the aircraft or of a 
prize crew would therefore be necessary for control of 
the Trader. 

The submarine, according to article 22 of the London 
naval treaty, must " conform to the rules of international 
law to which surface vessels are subject," must place the 
" passengers, crew, and ship's papers in a place of safety " 
unless there has been " persistent refusal to stop on be- 
ing duly summoned " or " active resistance to visit or 

Resume. — The American delegation, according to the 
report of the commission of jurists in 1923, took a posi- 
tion somewhat different in principle from that proposed 
at Washington in 1922, while the British delegation fol- 
lowed more closely the principles in the proposed Wash- 
ington treaty. There was much difference of opinion as 
to the right of visit and search by aircraft, and not even 
a majority of votes of the delegations could be secured for 
any rule. There was, however, a general consensus that 
the use of aircraft against merchant vessels should be reg- 
ulated. It was admitted that under present conditions it 
would be in most cases necessary to direct the merchant 
vessel to some place suitable for visit by aircraft or where 
visit and search could be otherwise conducted. It might 
be necessary for a merchant vessel to go far from her 
course at great loss and inconvenience to obey orders of 
an aircraft which had no well-grounded suspicion war- 
ranting interference. The delegations were not in agree- 
ment as to whether vessels of war had any recognized 
right to cause a merchant vessel to change her course in 
absence of evidence at the time in possession of the com- 
mander of the vessel of war, and not merely that a vessel 
in regard to which he had no evidence might be more ef- 


fectively overhauled to discover whether she might be 
liable to visit and search. Grave extensions of the ac- 
cepted rules in regard to the right of visit and search had 
been resorted to in the World War and extreme views 
were entertained by some in 1923. 

The French delegation at The Hague in 1923 submitted 
a rule which was indefinite and left many of the debatable 
questions unsettled because it merely affirmed that the 
rule for surface craft in regard to which there was dis- 
agreement should be applicable to aircraft. 

The proposed French text was: 

Aircraft are forbidden to operate against merchant vessels, 
whether surface or submarine, without conforming to the rules to 
which surface warships are subject. (1924 N. W. C, International 
Law Documents, p. 138.) 

The American draft would specifically forbid the di- 
version of a merchant vessel prior to the boarding, 
though, as in case of a surface ship, a merchant vessel 
might be detained temporarily till conditions made board- 
ing possible. 

To allow an aircraft or a submarine exceptional privi- 
leges in the conduct of visit and search because of weak- 
ness or incapacity does not seem logical. A surface ves- 
sel of war is allowed to use shell fire against a merchant 
vessel which disregards a summoning blank shot, and in 
general the vessel of war is under obligations as to the 
safety of the passengers and crew. In similar circum- 
stances an aircraft could rarely make provisions for the 
safety of passengers and crew after summons. Granting 
that aircraft construction remains relatively as at pres- 
ent, to admit some of the claims made as to aircraft rights 
in time of war would be to assume that the right of an 
instrument of war would be in inverse ratio to its capac- 
ity to carry out such rights or that disability gave ex- 
ceptional rights. 

Some of the arguments put forward during the World 
War in regard to taking or sending in merchant vessels 
for visit and search may equally apply to submarines and 


aircraft, and if generally accepted would make possible 
almost unlimited interference with neutral maritime com- 

Application of principles. — In the situation as stated, 
the Trader has come to in response to summons and has 
not refused to stop nor has the Trader offered any re- 
sistance. Effective control ceased when the aircraft de- 
parted. The order to lie to and wait is not an effective 
control, and the Trader is not more bound by it than 
by an order to go to a designated port without a prize 
crew or escort. The submarine has no right to sink the 
Trader, as it has not violated any of the provisions of 
article 22 of the London naval treaty and the submarine 
has not conformed in its action to the obligations of that 

Obligation of neutral cruiser. — When a neutral cruiser 
is in the vicinity of any action involving a merchant ves- 
sel of its flag, it should endeavor to assure the observance 
of law by the merchant vessel and to protect it from 
any violation of law which would injure the merchant 
vessel. In case of need, it should render such assistance 
as possible. In this situation (a) the Trader has been 
sunk and the cruiser should rescue the personnel and con- 
vey them to a place of safety, reporting in detail the cir- 
cumstances to the proper authority. 


(a) (1) The action of the submarine is not lawful, 
and (2) the cruiser of the United States should afford 
such aid as possible in rescuing the personnel of the 
Trader and report the circumstances in detail to the 
proper authority. 

(b) Canals in war time. 

Suez Canal treaty. — The treaty of October 29, 1888, 
signed by nine powers, including Turkey, in the pre- 
amble indicated the wish " to establish by a conventional 
act a definite system destined to guarantee at all times 


and for all the powers the free use of the Suez Maritime 
Canal." Among the articles of the convention for this 
purpose were the following: 

Article I. The Suez Maritime Canal shall always be free and 
open, in time of war as in time of peace, to every vessel of com- 
merce or of war, without distinction of flag. 

Consequently the high contracting parties agree not in any 
way to interfere with the free use of the canal in time of war 
as in time of peace. 

The canal shall never be subjected to the exercise of the right of 

Art. IV. The maritime canal remaining open in time of war 
as a free passage, even to the ships of war of belligerents, accord- 
ing to the terms of Article I of the present treaty, the high con- 
tracting parties agree that no right of war, no act of hostility, 
nor any act having for its object to obstruct the free navigation 
of the canal, shall be committed in the canal and its ports of 
access, as well as within a radius of 3 marine miles from those 
ports, even though the Ottoman Empire should be one of the 
belligerent powers. 

Vessels of war of belligerents shall not revictual or take in 
stores in the canal and its ports of access, except in so far as may 
be strictly necessary. The transit of the aforesaid vessels through 
the canal shall be effected with the least possible delay, in ac- 
cordance with the regulations in force, and without any other 
intermission than that resulting from the necessities of the 

Their stay at Port Said and in the roadstead of Suez shall not 
exceed 24 hours, except in case of distress. In such case they 
shall be bound to leave as soon as possible. An interval of 24 
hours shall always elapse between the sailing of a belligerent 
ship from one of the ports of access and the departure of a ship 
belonging to the hostile power. 

Art. V. In time of war belligerent powers shall not disembark 
nor embark within the canal and its ports of access either troops, 
munitions, or materials of war. But in case of an accidental 
hindrance in the canal men may be embarked or disembarked at 
the ports of access by detachments not exceeding 1,000 men, with 
a corresponding amount of war material. 

Art. VI. Prizes shall be subjected in all respects to the same 
rules as the vessels of war of belligerents. (British Parliamen- 
tary Papers, Commercial No. 2 (1889), C-5623, p. 5.) 

Comments on draft in 1887. — In 1887 the Marquis ot 
Salisbury, in commenting on the clauses of the draft 


<teaty, which were, save for slight changes for clarity, 
identical with the treaty of 1888, said of some of the 
differences of opinion: 

A second point upon which considerable controversy has arisen 
is the extent to which the contracting powers, for the purpose of 
securing the neutrality of the canal, should renounce their natural 
liberty in respect to acts of war or preparations for war. The 
project of treaty presented at the last sitting of the commission 
by Great Britain prohibited the " stationing " of any ships of war 
in the canal or its ports by a belligerent or the stationing of more 
than two by any power in time of peace. But it was contended, 
not only on the part of the French Government but of the large 
majority of the commission, that all acts of war and all acts 
directed immediately to the preparation of an operation of war 
should be forbidden not only in the canal but in the ports of 
access, in the approaches to it, and in the territorial waters of 
Egypt ; and the fifth article of the project of treaty protocoled 
at the closing session as representing the views of the majority 
of the powers runs in those terms. As the result of discussions 
which have taken place subsequently, I believe the Government of 
France are willing to admit material modifications of this article. 
To Her Majesty's Government any reference to the " approaches " 
of the canal (which would include the Red Sea), or to the terri- 
torial waters of Egypt, independent of the canal, appears to be 
open to grave objections. It is not necessary for the neutraliza- 
tion of the canal that these waters should be in any way affected 
by the provisions of the treaty. Her Majesty's Government must 
also adhere to the objection expressed by my predecessor to the 
inclusion among the list of acts prohibited in the " ports of ac- 
cess " of " acts having for their object the direct preparation of an 
operation of war," even in time of peace. Such a provision might 
operate as a material hindrance to the preparations required for 
the defense of Egypt. 

Similar considerations affected the sixth article of the project 
sanctioned by the majority of the powers in 1885, to which strong 
objection was taken by the British delegates. It consisted of a 
prohibition of the embarkation or debarkation of troops, muni- 
tions, or material of war, either in the canal or its ports of ac- 
cess, in time of war or in time of peace. This article appears to 
Her Majesty's Government now, as it did to the British delegates, 
to be far too wide in its application. The prohibition should be 
confined, in the first place, to times of war and to actual bellig- 
erents. The British delegates further contended that it should 
only apply to the canal, and not to the " ports of access." To this 


contention it is replied that if the landing of armies for hostile 
purposes was going on at the mouth of the canal, efforts would 
certainly be made by the other belligerent to prevent the de- 
barkation, and the prohibition of hostilities in the canal would 
become illusory. The difficulty felt by Her Majesty's Government 
in assenting to the inclusion of the ports of access in this pro- 
hibition arises not from any desire to see them used for belliger- 
ent purposes, but because it might in time of war be a serious 
impediment to the transit across the isthmus of reliefs for India, 
if the canal happened to be temporarily blocked. (Br. Pari. 
Paper, Egypt No. 1 (1888), 0. 5255, p. 41.) 

On November 4, 1887, a circular of the Marquis of 
Salisbury to the British representatives at Berlin, Vienna, 
Madrid, Rome, The Hague, St. Petersburg, Constanti- 
nople, and Cairo, contained a copy of a letter of October 
26, 1887, to the British representative at Paris, in which 
was renewed the reservation made by Sir Julian Paunce- 
fote at the close of the sittings of the commission of 
1885. It was to the following effect : 

Les Delegues de la Grande-Bretagne, en presentant ce texte de 
Traite comme le regime definitif destine a garantir le libre usage 
du Canal de Suez, pensent qu'il est de leur devoir de formuler 
une reserve generate quant a l'application de ces dispositions en 
tant qu'elles ne seraient pas compatibles avec l'6tat transitoire 
et exceptionnel ou se trouve actuellement l'Egypte, et qu'elles 
pourraient entraver la liberte d'action de leur Gouvernement pen- 
dant la periode de l'occupation de l'Egypte par les forces de Sa 
Majeste Britannique. (Ibid, p. 36.) 

Of this, Prof. T. E. Holland, of Oxford, writing to 
the London Times on October 9, 1898, said : 

1. It is certainly my opinion, for what it is worth, that the 
full operation of the convention of 1888 is suspended by the 
reserves first made on behalf of this country during the sittings 
of the conference of 1885. These reserves were texually re- 
peated by Lord Salisbury in his dispatch of October 21, 1887, 
inclosing the draft convention which three days later was signed 
at Paris by the representatives of France and Great Britain, the 
two powers which, with the assent of the rest, had been carrying 
on the resumed negotiations with reference to the canal. Lord 
Salisbury's language was also carefully brought to the notice of 
ea< h of the other powers concerned in the course of the some- 

SUEZ CANAL, 189 8 119 

what protracted discussions which preceded the final signature 
of the same convention at Constantinople on October 29, 1888. 

2. All the signatories of the convention having thus become 
parties to it after express notice of " the conditions under which 
Her Majesty's Government have expressed their willingness to 
agree to it," must, it can hardly be doubted, share the view that 
the convention is operative only sub modo. 

3. Supposing the convention to have become operative, and 
supposing the territorial power to be neutral in a war between 
States which we may call A and B, the convention would cer- 
tainly entitle A to claim unmolested passage for its ships of 
war on their way to attack the forces of B in the eastern seas. 
(Letters on War and Neutrality, 3d ed.. 1881-1920, p. 54.^ 

British Government attitude, 1898— In July, 1898, 
questions were raised in regard to sojourn of Spanish 
vessels of war at Port Said and involving the Suez Canal 
convention. Mr. Curzon, Under Secretary of State for 
Foreign Affairs, replied: 

The provisions of the Suez Canal convention to which the 
honorable member refers have never been brought into operation. 
The question of the duration of stay of foreign vessels at Port 
Said is one primarily for the decision of the Egyptian Govern- 
ment, and there has doubtless been good reason for the course 
adopted in this case. 

Mr. Davitt. Can the right honorable gentleman state what 
these reasons were? 

Mr. Curzon. I am not in the immediate councils of the Egyptian 
Government, so I can not inform the honorable member. 

Mr. Gibson Bowles (Lynn Regis). Did I understand the right 
honorable gentleman to say that the convention of 1888 is not in 
actual operation? 

Mr. Curzon. Yes; the honorable member did understand me 
to say so. (60 Parliamentary Debates, 4th series, p. 800.) 

Later on Mr. Gibson Bowles said on July 12, 1898 : 

I beg to ask the Under Secretary of State for Foreign Affairs 
whether the convention between Great Britain, Austria, France, 
Germany, Italy, the Netherlands, Russia, Spain, and Turkey, 
which was signed at Constantinople on October 29, 1888, and the 
ratifications whereof were deposited at Constantinople on Decem- 
ber 22, 1888, and whereof the first article declares that the Suez 
Canal shall always be free and open in time of war as in time 
of peace to every vessel of commerce or of war without distinc- 


tion of flag is still in existence and in operation; and, if not, 
whether he can say when and under what circumstances that 
convention ceased to exist or to operate? 

Mr. Curzon. The convention in question is certainly in exist- 
ence, but, as I informed the honorable member in reply to a ques- 
tion some days ago, has not been brought into practical operation. 
This is owing to the reserves made on behalf of Her Majesty's 
Government by the British delegates at the Suez Canal Commis- 
sion in 1885, which were renewed by Lord Salisbury, and com- 
municated to the powers in 1887. They will be found at page 292 
of the Parliamentary Paper, Egypt, No. 19, 1885. 

Mr. Gibson Bowles. Do these reserves made in 1887 override 
the treaty of 1888? 

Mr. Curzon. I do not express any definite opinion as to the 
word " override," but they are no doubt responsible for the fact, 
as I have already twice stated, that the terms of the convention 
have not been brought into practical operation. (61 Ibid., p. 667.) 

Hay-Pauncefote treaty, 1901. — The treaty of 1901 be- 
tween the United States and Great Britain settled many 
long-standing differences between the two states in regard 
to transisthmian rights. By the treaty a " canal may be 
constructed under the auspices of the Government of the 
United States." In article 3 of the treaty it was pro- 
vided that — 

The United States adopts, as the basis of the neutralization 
of such ship canal, the following rules, substantially as embodied 
in the convention of Constantinople, signed October 28, 1888, 1 for 
the free navigation of the Suez Canal ; that is to say : 

1. The canal shall be free and open to the vessels of commerce 
and of war of all nations observing these rules on terms of entire 
equality, so that there shall be no discrimination against any 
such nation or its citizens or subjects in respect of the conditions 
or charges of traffic or otherwise. Such conditions and charges 
of traffic shall be just and equitable. 

2. The canal shall never be blockaded, nor shall any right of 
war be exercised nor any act of hostility be committed within it. 
The United States, however, shall be at liberty to maintain such 
military police along the canal as may be necessary to protect 
it against lawlessness and disorder. 

3. Vessels of war of a belligerent shall not revictual nor take 
any stores in the canal except so far as may be strictly necessary, 

1 It is apparently the convention of October 29, 1888, to which refer- 
ence is made. 


-and the transit of such vessels through the canal shall be effected 
with the least possible delay in accordance with the regulations 
in force, and with only such intermission as may result from the 
necessities of the service. 

Prizes shall be in all respect subject to the same rules as 
vessels of war of the belligerents. 

4. No belligerent shall embark or disembark troops, munitions 
of war, or warlike materials in the canal except in case of acci- 
dental hindrance of the transit, and in such case the transit shall 
be resumed with all possible dispatch. 

5. The provisions of this article shall apply to waters adjacent 
to the canal within 3 marina miles of either end. Vessels of war 
of a belligerent shall not remain in such waters longer than 24 
hours at any one time except in case of distress, and in such 
case shall depart as soon as possible; but a vessel of war of one 
belligerent shall not depart within 24 hours from the departure 
of a vessel of war of the other belligerent. 

6. The plant, establishment, buildings, and all work necessary 
to the construction, maintenance, and operation of the canal shall 
be deemed to be part thereof for the purposes of this treaty, and 
in time of war as in time of peace shall enjoy complete immunity 
from attack or injury by belligerents and from acts calculated 
to impair their usefulness as part of the canal. (32 U. S. Stat., 
pt 2, p. 1903.) 

British opinion on Panama Canal. — J. H. Hall, in his 
book on the Law of Naval Warfare, of which the second 
edition appeared in 1921, after discussing the status of 
the Suez Canal, turns his attention briefly to the Panama 
Canal, saying: 

The Panama Canal is governed by the terms of the Hay- 
Pauncefote treaty made between Great Britain and the United 
States of America in 1901. The canal is permanently neutralized 
and the maintenance of that status is insured by the terms of 
article 3, in which is laid down a series of rules substantially 
the same as those embodied in the Suez Canal convention. The 
canal was formally opened on August 16, 1914. Under the terms 
of their treaty with the Panama Republic the United States 
Government a fortnight later took over the control of all wireless 
telegraph stations, fixed or movable, in the Republic, and on Octo- 
ber 10 the two Governments signed a protocol agreeing that 
during a war in which their respective countries were neutral 
hospitality to a belligerent warship, transport, or fleet auxiliary 
accorded in the territorial waters of the Panama Republic should 
69574—31 9 


serve to deprive such vessel of like hospitality in the Canal Zone 
for the ensuing 1 three months and vice versa. On November 13 
the United States Government issued neutrality regulations for 
the Canal Zone which conform in general with the rules of the 
Thirteenth Hague convention in regard to the use of neutral 
ports by belligerent warships and similar vessels. Two points, 
however, are deserving of special notice. The normal rule ad- 
mitting only three warships of a belligerent at one time is modified 
by allowing three to be in the terminal ports of the canal as well 
as three on passage, making it permissible for there to be a total 
maximum of six in the Canal Zone at one time. The rules of 
priority of departure and 24 hours interval as between the vessels 
of opposing belligerents are modified in the case of a belligerent 
warship which returns within a week of her previous departure 
by depriving such vessel of precedence of departure over enemy 
vessels, which arrive after her return and before the expiration 
of a week subsequent to her previous departure; the canal au- 
thorities are empowered to regulate the departure of such a ves- 
sel as they think fit with a view to preventing a constant reap- 
pearance in this manner, resulting in practice in a blockade of the 
canal against the vessels of the opposing belligerent (p. 181). 

The Suez Canal. — During the World War the status of 
the Suez Canal naturally became a subject of change 
owing to the relations of Turkey and of Egypt as well 
as the relation of other political entities to the war. In 
January, 1915, questions came before the British prize 
court in Egypt in regard to the German steamship 
Gutenfels, which had on August 5, 1914, arrived at Port 
Said. A " decision " of the Egyptian Government of 
August 5, 1914, gave permission to German vessels to 
leave Egyptian ports up to sunset August 14. The 
Gidenfels remained at Port Said till " On October 13, she 
was boarded by an officer of the Egyptian Army, and her 
master was informed that the Egyptian Government had 
taken possession of her, and that a new master and crew 
would be sent on board. On October 16, with the Egyp- 
tian authorities still on board, she proceeded to sea, and 
when 3 or 4 miles out was formally seized by H. M. S. 
Warrior and brought to Alexandria." (1 Trehern, Br. 
and Col. Prize cases, p. 102.) The German owners main- 
tained that the court should take under consideration all 

SUEZ CANAL, 1914-1918 123 

the circumstances involved and not merely the capture 
by the Warrior, and this the court admitted and says: 

Having established this point in their favor, the owners pray 
restoration of their vessel on the ground that Port Said is a 
neutral port, whose neutrality has been guaranteed by the Suez 
Canal convention ; and it becomes our duty to consider what is 
the position of enemy ships which have taken refuge in the port. 
Are they entitled to immunity from capture while lying at anchor 
having no intention to pass through the canal, or does immunity 
only extend to them for such reasonable time as may be necessary 
to enable them to make a passage through it? (Ibid., p. 108.) 

After considering the arrangements between the canal 
company and the Egyptian Government, the court finds 
nothing in the arrangements which can give rights to 
third parties like the German owners, and the case 
continues : 

But there is another aspect of the question which has been 
brought abcut by the international convention of October 29, 1888, 
guaranteeing Llu> free use of the Suez Canal, and commonly re- 
ferred to as the Suez Canal convention. To this convention all 
the great European powers and the Sultan of Turkey were 
parties : 

11 Article 1 declares that — 

" The Suez Maritime Canal shall always be free and open, in 
time of war as in time of peace, to every vessel of commerce or 
of war, without distinction of flag. Consequently the high con- 
tracting parties agree not in any way to interfere with the free 
use of the canal, in time of war as in time of peace. The canal 
shall never be subjected to the exercise of the right of blockade." 

Article 4, which is the special article upon which the claimants 
rely, reads as follows: 

" The maritime canal remaining open in time of war as a free 
passage even to the ships of war of belligerents, according to 
Article I of the present treaty, the high contracting parties agree 
that no right of war shall be exercised, nor shall any act of hos- 
tility, or any act having for its object to obstruct the free navi- 
gation of the canal, be committed in the canal and its ports of 
access, nor within a radius of 3 marine miles from those ports, 
even though the Ottoman Empire should be one of the belligerent 
powers " ; and special provision is made as to the passage and 
victualing of vessels of war. (Ibid., p. 110.) 


Other articles provide for oversight and protection of 
the canal and that in other respects the sovereign rights of 
the Sultan of Turkey and the Khedive of Egypt " are not 
to be affected." Of this the court says : 

In view of these provisions there is a grim touch of humor about 
the present situation, seeing that the Ottoman Government, under 
German direction, is at this moment seeking to destroy the canal, 
while a German ship taken by the Egyptian Government asks in a 
British prize court for a declaration of release on the ground that 
the canal precincts are absolutely inviolable. 

The passages that I have cited are all that, in my opinion, are 
material to the issue. Can it be said that this convention gives 
the right to any ship to shelter itself indefinitely, or at all, in 
the ports ancillary to the canal because they happen to be within 
the limits of the operations of the canal company? I think not. 
In my opinion, the sole object of the treaty, as expressed both in 
its preamble and operative articles, is to insure a free and 
uninterrupted passage of the canal at all times to all ships of all 
nations of the world ; and if in the unlikely event of a German 
ship now entering Suez or Port Said and demanding a free pas- 
sage, I think it would be the plain duty of the British Government 
(after taking proper precautions to prevent damage to the canal 
itself) to allow such ship to pass through and sail out at the 
other end ; and I have no reason to suppose that the British Gov- 
ernment would fail in its duty. But that is the limit of its obli- 
gation ; and if a ship enters Suez or Port Said without any inten- 
tion of going through the canal, or, being in either of those ports, 
abandons any intention it may have had of passing through. I 
am of opinion that she ceases to have any rights whatever under 
the convention. The object of the convention is to insure a free 
passage through the canal, and nothing else, and all prohibitions 
against acts of hostility within the canal precincts are framed 
with that object and that alone. (Ibid., p. 111.) 

Suez Canal and Port Said. — In 1914 several German 
merchant vessels which entered Port Said claimed protec- 
tion under that part of article 4 of the Suez Canal con- 
vention of 1888, which is as follows : 

The maritime canal remaining open in time of war as a free 
passage, even to the ships of war of the belligerents, according 
to the terms of article 1 of the present treaty, the high contracting 
parties agree that no right of war, no act of hostility, nor any act 
.having for its object to obstruct the free navigation of the canal, 

SUEZ CANAL, 1914-1918 125 

shall be committed in the canal and its ports of access, as well 
as within a radius of 3 marine miles from those ports, even though 
the Ottoman Empire should be one of the belligerent powers. (2 
Grant, Br. and Col. Prize Cases, p. 148n.) 

These vessels were by persons employed by the Egyp- 
tian authorities taken outside territorial waters, where 
they were immediately captured by British vessels of war 
and taken before a prize court, where they were con- 
demned as good prize. The case of the Pindos making 
" a round voyage from Antwerp to eastern Mediterranean 
ports," the Helgoland " bound with general cargo from 
Singapore to Rotterdam and Bremen," and the Rostock 
came at the same time before the judicial committee of 
the Privy Council on appeal, and in dismissing the appeal 
their lordships in part said : 

The Rostock was a steamship of 4,957 tons gross which be- 
longed to the Deutsche-Australische Dampfschiffsgesellschaft, of 
Hamburg. She came through the Suez Canal from eastern ports 
with general cargo bound, no doubt, for a home port, and arrived 
at Port Said on July 31 and began to discharge such part of her 
cargo as was deliverable there. While doing so her captain re- 
ceived a cablegram from his owners at Hamburg to wait further 
orders. His log records on August 1 : " In order to protect ship 
and cargo from the attacks of the enemy shall remain until 
further notice in Port Said, as the harbor is neutral." On 
August 17 to 19 the ship discharged her cargo of frozen meat. 
After July 31 the captain received no further communication from 
his owners. He was treated by the Egyptian authorities in respect 
of the offer of a pass, the actual delivery of a valid pass subse- 
quently, and the removal of his ship outside Egyptian territorial 
waters, exactly as the captains of the Pindos and the Helgoland 
were treated. He behaved in the same way and for the same 
reasons. The Rostock was captured by the Warrior on October 
15 and was condemned as prize on February 17, 1915. 

The claimants in their petitions formally relied on what in each 
case were substantially the same defenses — namely, first, the 
benefit of the Sixth Hague Convention of 1907, articles 1 and 
2 ; secondly, the benefit of article 4 of the Suez Canal convention 
of 1888, confirmed by article 6 of the Anglo-French agreement of 
1904; thirdly, the formal invalidity and the practical inefficiency 
of the passes which were offered by the Egyptian authorities; 
and fourthly, considerations of equity and natural justice arising 


out of the circumstances under which the ships were ejected from 
Egyptian waters. 

Of these points the first has already been dealt with sufficiently 
by their lordships in the case of The Gutenfels [1916] (ante, p. 
36; 85 L. J. P. C. 140), and the third in that of The Achaia [1916] 
(ante, p. 45; 85 L. J. P. C. 155). Of the second all that need be 
said is this : Whatever question can be raised as to the parties to 
and between whom the Suez Canal convention, 1888, is applicable, 
and as to the interpretation of its articles, one thing is plain, 
that the convention is not applicable to ships which are using 
Port Said, not for the purposes of passage through the Suez Canal 
or as one of its ports of access, but as a neutral port in which to 
seclude themselves for an indefinite time in order to defeat bellig- 
erents' rights of capture alter abandoning any intention which 
there may ever have been to use the port as a port of access in 
connection with transit through the canal. Those responsible 
for the ships took their course deliberately, and took it before 
August 14. The captains appear, as was only natural, to have 
consulted together and to have acted in concert. In the case of 
the Helgoland her owners in Bremen, doubtless well-informed 
persons, as early as Thursday, July 30, 1914, if not earlier, 
were so assured, though no ultimatum had then been issued, 
that Germany would shortly be at war, and England and 
Egypt would be neutral ; that they ordered her captain to stop in 
Port Said instead of trying to reach a Turkish, a Greek, an 
Italian, or an Austrian port. It is no light responsibility to stop 
a ship of over 5,000 tons with general cargo in midvoyage for an 
indefinite period, and thus to imperil insurances alike on ship and 
cargo, and to incur heavy expenses and probably heavy claims 
from cargo owners as well; but this responsibility was taken. 
Their lordships are of opinion that the evidence amply justified 
the decision of the prize court in each case; that the ships were 
using Port Said simply as a port of refuge, and therefore without 
any right or privilege arising out of the Suez Canal convention, 
1888. Hence their expulsion by the Egyptian authorities when 
it had become plain that they would not leave of themselves 
affords no answer to the claim for condemnation in natural jus- 
tice, or equity, or law. (Ibid., p. 148.) 

Case of the " Derffiinger." — The Derfflinger was a Ger- 
man vessel which by its build showed that it was intended 
for conversion into a vessel of Avar. Coming from the 
east, she passed through the Suez Canal, arriving at Port 
Said August 2, 1914. The Hague convention in regard 
to clays of grace does not apply to vessels whose build 


shows they are intended for conversion into vessels of 
war. The log of the Derfflinger had the following 
entries : 

1914, August 2 : Arrived Port Said. The journey can not be 
continued on account of the war. 

August 3: Passengers and baggage landed. (2 Grant, Br. and 
Col. Prize Cases, p. 3G.) 

The judgment of the judicial committee of the Privy 
Council stated : 

Under the International Suez Canal convention of 18S9, she was 
entitled to use the canal for the purposes of passage. She had used 
it, and the above entries show that her voyage of passage was over ; 
that her journey was, in her view, rendered abortive by reason 
of the war, and that she had accordingly landed her passengers 
and cargo. Port Said was, on August 2 and 3, a neutral port. 
The war which caused the discontinuance of the ship's voyage was 
the war between Germany and France and that between Germany 
and Russia. When war broke out on August 4 between Germany 
and Great Britain the vessel was lying in Port Said, not in 
.exercise of a right of passage but by way of user of the port as a 
port of refuge. 

Under these circumstances the canal convention had ceased 
to be operative and she was not entitled to any protection. The 
ship was a German ship lying in an enemy port, and was a ship 
to which the Hague convention did not apply. (Ibid, p. 44.) 

Kiel Canal. — Article 380 of the treaty of Versailles 
June 28, 1919, provided that that canal should be open 
to vessels of commerce and of war in terms somewhat 
similar to those used in the Suez and Panama conven- 
tions : 

Art. 380. The Kiel Canal and its approaches shall be main- 
tained free and open to the vessels of commerce and of war of all 
nations at peace with Germany on terms of entire equality. 

Questions arose in regard to this clause in 1921. The 
Wimbledon, a British vessel, chartered by a French com- 
pany, carrying munitions loaded at Salonica bound for 
Poland via Danzig, had been refused permission by Ger- 
many to pass through the Kiel Canal on March 21, 1921. 
The German neutrality in the war between Eussia and 
Poland was given as the reason for the refusal. 


This action of Germany came before the Permanent 
Court of International Justice and was the subject of its 
first judgment commonly known as the case of the Wim- 
bledom. The judgment was rendered August 17, 1923, 
and in addition to Germany the parties were Great 
Britain, France, Italy, Japan, and Poland. 

Sir Cecil Hurst, speaking before the court for Great 
Britain, said : 

In each of the international instruments, therefore, which fix 
the regime for the Suez Canal and for the Panama Canal, respec- 
tively, words are employed which are identical with those used 
in article 380 of the treaty of Versailles with regard to the 
Kiel Canal. I think it is reasonable to ask the court to draw 
the inference that if the framers of the treaty of Versailles used 
identical language with regard to the Kiel Canal to that which 
had been used in regard to the Suez and Panama Canals, they 
intended to establish for the Kiel Canal a regime analagous to 
that which existed in regard to those other great maritime water- 
ways. (Publications of the Permanent Court of International 
Justice, series C, No. 3, vol. 1, p. 254.) 

Now, what really is the regime which has been created for 
these other waterways at Suez and Panama? They have been 
constituted into highways open for all kinds of navigation, not 
merely the navigation of commerce, but also for the more serious 
navigation of war. They have been constituted in this way into 
great international highways by instruments which operate not 
merely as between the parties to those instruments, but which 
operate for the benefit of all nations. (Ibid. p. 256.) 

After discussing the obligation of neutral states to 
refuse to belligerent vessels of war the use of their in- 
land waterways, Sir Cecil Hurst further says: 

Does that principle apply to these great international water- 
ways, which I have mentioned — the Suez Canal, the Panama 
Canal, and the Kiel Canal? In the instruments regulating the 
regime for those waterways, you will find in several places that 
the passage of warships is provided for, and it is provided for 
in terms which enable those warships to pass even when they 
are the warships of a belligerent power and when the territorial 
sovereign of the area in which the canal is situated remains neu- 

Consequently, I think it is clear that the regime established for 
these great international waterways is, in matters relating to 


neutrality, a very special regime, and that the normal principles 
which obtain with regard to the obligations of neutrality do not 
attach to these waterways at all. 

I have mentioned the case of ships of war, but that is not the 
only way in which the question arises. There is not merely the 
question of ships of war ; there is the case of vessels which are 
assimilated to vessels of war — storeships, prizes, and so on. There 
is also the case of the ordinary transportation of contraband. 
(Ibid., p. 258.) 

In referring to arguments as to the analogy of the 
Suez and Panama Canals and the Kiel Canal, the Ger- 
man representative before the court said : 

They argue that these various articles, having the same word- 
ing have the same object, and involve the same rights and obli- 

Let us proceed to a comparison. 

The Suez Canal act, Article I, paragraph 1, runs : 

" The Suez Maritime Canal shall always be free and open in 
time of war as in time of peace, to every vessel of commerce or of 
war, without distinction of flag." 

The Panama Canal act, Hay-Pauncefote treaty of November 18, 
1901, says : 

" The canal shall be free and open to the vessels of commerce 
and of war of all nations observing these rules, on terms of en- 
tire equality." 

"The provisions referring to the Kiel Canal (article 380 of the 
treaty of Versailles) say : 

" The Kiel Canal and its approaches shall be maintained free 
and open to the vessels of commerce and of war of all nations at 
peace with Germany on terms of entire equality." 

So it is true that the article relating to the Kiel Canal begins 
by a similar phrase to that used in the corresponding article in 
the Suez Canal convention ; but the sense of the text as regards 
the Kiel Canal is narrower. It will be observed that the words 
" in time of war as in time of peace " are lacking in the Kiel Canal 
article and the Panama Canal convention ; they only appear in the 
Suez Canal convention. 

With regard to the Kiel Canal, the article limits freedom of 
passage to nations " at peace with Germany " ; and the Panama 
Canal convention has the words " observing these rules," subject- 
ing the user of the canal to a series of regulations which are to be 
drawn up. In the French text of the Kiel Canal article the word 
" toujours " appears, but the word " always " does not appear in 
the English text. "Always " appears both in English and French 


in the Suez Canal convention, where it does not at all appear in 
the Panama convention. 

Article I, paragraph 1, of the Suez Canal convention, relating 
to freedom of passage, is followed by paragraph 2, which says : 

" Consequently, the high contracting parties agree not in any 
way to interfere with the free use of the canal in time of war as 
in time of peace." 

No such paragraph is found in the Kiel article, nor does it 
appear in the Panama Canal convention. 

Also paragraph 3 of Article I of the Suez Canal act relates to 
the impossibility of blockading the canal, so that it must be 
considered as neutralized. Provisions to this effect are to be 
found in the Panama Canal convention, but not in the articles 
relating to the Kiel Canal. 

The provisions of article 381, paragraph 2, are not to be found 
either in the Suez or the Panama convention. 

As regards the question of defense, whilst article 10 of the 
Suez convention admits the right to establish defenses on the 
Canal, Article II adds, " but not in such a way as to hinder the 
free passage of ships." Article 23 of the Hay-Pauncefote conven- 
tion of 1903 admits the right of defense, unhindered by this re- 
striction. (Ibid., p. 345.) 

In its decision the court considered that the Kiel Canal, 
had " ceased to be an internal and national waterway " 
and had become an " international waterway " open to 
vessels of states at peace with Germany, even if at war 
with each other. The court also recognized that the 
rules were not the same for the Suez, Panama, and Kiel 
Canals, but that their intent was to establish inter- 
national waterways of which the use by belligerents 
might not be incompatible with neutral obligations of 
the authority having jurisdiction along the route of the 
canal. The court says in the decision : 

The precedents therefore afforded by the Suez and Panama 
Canals invalidate in advance the argument that Germany's neu- 
trality would have necessarily been imperiled if her authorities 
had allowed the passage of the Wimbledon through the Kiel 
Canal, because that vessel was carrying contraband of war con- 
signed to a state then engaged in an armed conflict. Moreover 
they are merely illustrations of the general opinion according to 
which when an artificial waterway connecting two open seas has 
been permanently dedicated to the use of the whole world such 


waterway is assimilated to natural straits in the sense that even 
the passage of a belligerent man-of-war does not compromise the 
neutrality of the sovereign state under whose jurisdiction the 
waters in question lie. (Idem., series A, p. 28.) 


(b) The action of the commander of the Hail in pro- 
ceeding to a trial flight of the aircraft in a port of the 
state of Panama is not lawful. The commander of the 
cruiser should report the circumstances in detail to the 
proper authority and await instructions. 

(c) Panama Canal Zone. 

Treaties with Panama. — The treaties between the 
United States and Panama since 1903 have shown a close 
relationship between the two states. The existence of 
the Panama Canal under the management of the United 
States and the control of the Canal Zone have made this 
essential to both states. Article I of the convention of 
1903 reads : 

The United States guarantees and will maintain the independ- 
ence of the Republic of Panama. (33 U. S. Stat., pt. 2, p. 2234.) 

Panama 's neutrality, 191 4. — The necessity of joint ac- 
tion by the United States, and sometimes control in Pan- 
ama has been seen in many acts. This is evident in De- 
cree No. 130 of 1914 : 

The President of the Republic, in the exercise of his legal 
powers, and considering : 

That by the terms of the Bunau-Varilla-Hay treaty the Republic 
of Panama is obliged to assist the United States by all necessary 
and suitable measures for the conservation, protection, and de- 
fense of the interoceanic canal constructed across the Isthmus; 

That the said Government considers it indispensable to this 
end that it shall assume from now on permanent and complete con- 
trol of the wireless telegraphic stations, fixed and movable, in all 
the territory, and territorial waters of the Republic of Panama ; 

That it is to the interest and for the safety of the Republic 
of Panama that wireless communication be controlled and regu- 
lated by the nation which by a solemn pact has guaranteed its 
independence ; 


It is decreed : From this date the radiotelegraphic stations, 
fixed and movable, and everything relating to wireless communi- 
cations in the territory and territorial waters of Panama shall be 
under the complete and permanent control of the United States 
of America ; and to attain that end said Government will take the 
measures which it deems- necessary. 

Let it be communicated and published. 

Done at Panama this 29th day of August, 1914. 

Belisario Porras. 

The Secretary of Government and Justice : 
Juan B. Sosa. 

(1914 U. S. For. Rel., p.' 1051.) 

On October 10, 1914, an agreement was entered into 
between the United States and Panama : 

The undersigned, the Acting Secretary of State of the United 
States of America and the envoy extraordinary and minister 
plenipotentiary of the Republic of Panama, in view of the close 
association of the interests of their respective Governments on the 
Isthmus of Panama, and to the end that these interests may be 
conserved, and that when a state of war exists the neutral obli- 
gations of both Governments as neutrals may be maintained, 
after having conferred on the subject and being duly empowered 
by their respective Governments, have agreed : 

That hospitality extended in the waters of the Republic of 
Panama to a belligerent vessel of war or a vessel belligerent or 
neutral, whether armed or not, which is employed by a belligerent 
power as a transport or fleet auxiliary or in any other way for the 
direct purpose of prosecuting or aiding hostilities, whether by 
land or sea, shall serve to deprive such vessel of like hospitality 
in the Panama Canal Zone for a period of three months, and vice 

In testimony whereof, the undersigned have signed and sealed 
the present protocol in the city of Washington this 10th day of 
October, 1914. 

Robert Lansing. 
Eusebto A. Morales. 

(38 U. S. Stat, pt. 2, p. 2042.) 

The proclamation of the United States, November 19, 
1914, in regard to the neutrality of the Canal Zone, con- 
tained rules as to aircraft. 

Rule 15. Aircraft of a belligerent power, public or private, are 
forbidden to descend or arise within the jurisdiction of the United 


States at the Canal Zone, or to pass through the air spaces above 
the lands and waters within said jurisdiction. 

Rule 16. For the purpose of these rules the Canal Zone includes 
the cities of Panama and Colon and the harbors adjacent to the 
said cities. (38 U. S. Stat., pt. 2, p. 2039.) 

Swiss ordinance, 19H. — The geographical location of 
Switzerland, surrounded by belligerents, made it essen- 
tia] that so far as possible the Swiss neutrality regula- 
tions should be clear. A somewhat detailed ordinance 
was issued on August 4, 1914, soon after the outbreak of 
the World War. This ordinance provided for aviation 
in prescription 17. 

As to aritition, attention will be given to what follows: 

(a) Balloons and aircraft not belonging to the Swiss Army 
can not rise and navigate in the aerial space situated above our 
territory unless the persons ascending in the apparatus are fur- 
nished with a special authorization, delivered in the territory 
occupied by the army, by the commander of the army; in the 
rest of the country, by the federal military department. 

(b) The passage of all balloons and aircraft coming from 
abroad into our aerial space is forbidden. It will be opposed 
if necessary by all available means, and these aircraft will be 
controlled whenever that appears advantageous. 

(c) In case of the landing of foreign balloons or aircraft, their 
passengers will be conducted to the nearest superior military 
commander, who will act according to his instructions. The 
apparatus and the articles which it contains ought, in any case, 
to be seized by the military authorities or the police. The federal 
military department or the commander of the army will decide 
what ought to be done with the personnel and materiel of a bal- 
loon or aircraft coming into our territory through force majeure 
and when there appears to be no reprehensible intention or 
negligence. (1916 N. W. C, International Law Topics, p. 73.) 

In the notification to the French Government, August 
8, 1914, it was said : 

The Swiss Federal Government has notified the Government of 
the Republic under date of August 8, 1914, that in view of the 
maintenance of the neutrality of Switzerland it is forbidden to 
all balloons and aircraft coming from a foreign country to pass 
in the aerial space above the Swiss territory. All means will 
be taken, if necessary, to prevent this passage. (Ibid. 77.) 


Delivery of aircraft in neutral ports. — Article 18 of 
Thirteenth Hague Convention, 1907, provides: 

Belligerent ships of war can not make use of neutral ports, 
roadsteads, or territorial waters for replenishing or increasing 
their supplies of war material or their armament or for com- 
pleting their crews. (Hague and Geneva Conventions, 1911, p. 

This article in effect embodies a part of article 5 of 
the treaty of Washington, 1871, as applied to belligerents. 

At the present time aircraft may be and are often an 
essential part of the armament of a vessel of war, and a 
neutral is justified or under obligation to assume that 
aircraft are a part of the armament. The delivery of the 
aircraft to the Hail in this situation is therefore in con- 
travention of the principles of The Hague Convention. 

Cruiser of X in neutral ports. — The Hail, a cruiser of 
State X, has acted in a manner contrary to article 18 
of Thirteenth Hague Convention, 1907, and accordingly 
not in accord with the treaty of Washington of 1871. 
The principle embodied in article 18 is one of the most 
widely accepted in preventing increase of armament in 
a neutral port. In the neutral port in the State of 
Panama the testing of an aircraft would likewise be con- 
trary to the spirit of Thirteenth Hague Convention, 1907, 
w r hich in article 1 enjoins respect for the rights of neutral 
States, among which is that to determine the use of 
aerial space above its territory. 

The authorities of the port of the State of Panama 
are justified in protesting against the trial flight of the 
aircraft from the Hail and may take such action as may 
be necessary to prevent the flight or may intern the Hail. 

The commander of the cruiser of the United States, 
not being under the authority of Panama, should report 
the facts to the proper authorities of the United States 
and await instructions. 

Panama and the Panama Canal. — As under the terms 
of the treaty of 1903, the. United States guarantees and 
will maintain the independence of Panama, it is not 


necessary for Panama to support forces for this pur- 
pose. The United States and Panama took action in co- 
operation during the World War for the maintenance 
of their rights. The agreement of October 10, 1914, made 
provision for reciprocal hospitality to belligerent vessels 
of war. The Hail had violated the neutrality of Panama, 
and entering the Panama Canal Zone comes within an area 
in which the flight of belligerent aircraft had in 1914 been 
specifically prohibited. Under the relations existing be- 
tween the United States and Panama, and in view of the 
previous acts of the Hail, Panama might properly look 
to the United States for some action in support of its 
protest against a violation of its neutrality. Accordingly 
it would seem that the least that the authorities of the 
Panama Canal Zone could do would be to detain the 
Hail pending instructions from the proper authorities, 
to whom the circumstances in detail should be reported. 


(c) The authorities of the Panama Canal Zone should 
detain the Hail, not allowing the vessel to enter the 
canal without instructions from the proper authorities to 
whom the circumstances in detail should be reported. 





Text of the treaty 139 


1. The British Secretary of State for Foreign Affairs 

(Henderson) to the American Ambassador in Great 

Britain (Dawes), October 7, 1929 163 

Enclosure — The British Secretary of State for 
Foreign Affairs (Henderson) to the French, 
Italian, and Japanese Ambassadors in Great 
Britain, October 7, 1929 163 

2. The American Charge d' Affaires in Great Britain 

(Atherton) to the British Secretary of State for 
Foreign Affairs (Henderson), October 10, 1929 166 

3. Statement of the President of the United States and the 

British Prime Minister, October 10, 1929 166 

69574—31 10 137 


Text of the treaty 

The President of the United States of America, the 
President of the French Republic, His Majesty the King 
of Great Britain, Ireland and the British Dominions be- 
yond the Seas, Emperor of India, His Majesty the King 
of Italy, and His Majesty the Emperor of Japan, 

Desiring to prevent the dangers and reduce the burdens 
inherent in competitive armaments, and 

Desiring to carry forward the work begun by the Wash- 
ington Naval Conference and to facilitate the progres- 
sive realization of general limitation and reduction of 

Have resolved to conclude a Treaty for the limitation 
and reduction of naval armament, and have accordingly 
appointed as their Plenipotentiaries : 

The President of the United States of America : 

Henry L. Stimson, Secretary of State; 

Charles G. Dawes, Ambassador to the Court of St. 
James ; 

Charles Francis Adams, Secretary of the Navy; 

Joseph T. Robinson, Senator from the State of Ar- 
kansas ; 

David A. Reed, Senator from the State of Pennsyl- 
vania ; 

Hugh Gibson, Ambassador to Belgium; 

Dwight W. Morrow, Ambassador to Mexico ; 



The President of the French Republic: 

Mr. Andre Tardieu, Deputy, President of the Coun- 
cil of Ministers, Minister of the Interior; 

Mr. Aristide Briand, Deputy, Minister for Foreign 
Affairs ; 

Mr. Jacques-Louis Dumesnil, Deputy, Minister of 
Marine ; 

Mr. Francois Pietri, Deputy, Minister of the Col- 
onies ; 

Mr. Aime-Joseph de Fleuriau, Ambassador of the 
French Republic at the Court of St. James; 
His Majesty the King of Great Britain, Ireland and the 
British Dominions beyond the Seas, Emperor of 
India : 

for Great Britain and Northern Ireland and all parts 
of the British Empire which are not separate 
Members of the League of Nations : 

The Right Honourable James Ramsay MacDonalcl, 

M.P., First Lord of His Treasury and Prime 

Minister ; 
The Right Honourable Arthur Henderson, M.P., 

His Principal Secretary of State for Foreign 

Affairs ; 
The Right Honourable Albert Victor Alexander, 

M.P., First Lord of His Admiralty; 
The Right Honourable William Wedgwood Benn, 

D.S.O., D.F.C., M.P., His Principal Secretary of 

State for India ; 

for the Dominion of Canada : 

Colonel The Honourable James Layton Ralston, 
C.M.G., D.S.O., K.C., a Member of His Privy 
Council for Canada, His Minister for National 
Defence ; 

The Honourable Philippe Roy, a Member of His 
Privy Council for Canada, His Envoy Extraordi- 
nary and Minister Plenipotentiary in France for 
the Dominion of Canada; 


for the Commonwealth of Australia : 

The Honourable James Edward Fenton, His Minister 
for Trade and Customs ; 

for the Dominion of NeAV Zealand : 

Thomas Mason Wilford, Esquire, K.C., High Com- 
missioner for the Dominion of New Zealand in 
London ; 
for the Union of South Africa : 

Charles Theodore te Water, Esquire, High Commis- 
sioner for the Union of South Africa in London; 

for the Irish Free State : 

Timothy Aloysius Smiddy, Esquire, High Commis- 
sioner for the Irish Free State in London ; 

for India : 

Sir Atul Chandra Chatterjee, K.C.I.E., High Com- 
missioner for India in London ; 

His Majesty the King of Italy : 

The Honourable Dino Grandi, Deputy, His Minis- 
ter Secretary of State for Foreign Affairs; 

Admiral of Division The Honourable Giuseppe 
Sirianni, Senator of the Kingdom, His Minister 
Secretary of State for Marine ; 

Mr. Antonio Chiaramonte-Bordonaro, His Ambas- 
sador Extraordinary and Plenipotentiary at the 
Court of St. James ; 

Admiral The Honourable Baron Afredo Acton, Sen- 
ator of the Kingdom ; 

His Majesty the Emperor of Japan: 

Mr. Reijiro Wakatsuki, Member of the House of 
Peers ; 

Admiral Takeshi Takarabe, Minister for the Navy ; 

Mr. Tsuneo Matsudaira, His Ambassador Extraordi- 
nary and Plenipotentiary at the Court of St. 
James ; 

Mr. Matsuzo Nagai, His Ambassador Extraordinary 
and Plenipotentiary to His Majesty the King of 
the Belgians; 


Who, having communicated to one another their full 
powers, found in good and due form, have agreed as 
follows : 


Article 1. 

The High Contracting Parties agree not to exercise 
their rights to lay down the keels of capital ship replace- 
ment tonnage during the years 1931-1936 inclusive as 
provided in Chapter II, Part 3 of the Treaty for the 
Limitation of Naval Armament signed between them at 
Washington on the 6th February, 1922, and referred 
to in the present Treaty as the Washington Treaty. 

This provision is without prejudice to the disposition 
relating to the replacement of ships accidentally lost or 
destroyed contained in Chapter II, Part 3, Section I, 
paragraph (c) of the said Treaty. 

France and Italy may, however, build the replacement 
tonnage which they were entitled to lay down in 1927 and 
1929 in accordance with the provisions of the said Treaty. 

Article 2. 

1. The United States, the United Kingdom of Great 
Britain and Northern Ireland and Japan shall dispose of 
the following capital ships as provided in this Article : 

United States: 

" Florida ". 

" Utah ". 

" Arkansas " or " Wyoming ". 
United Kingdom : 

" Benbow ". 

" Iron Duke ". 

" Marlborough ". 

" Emperor of India ". 

" Tiger ". 

" Hiyei ". 


(a) Subject to the provisions of sub-paragraph (6), 
the above ships, unless converted to target use exclusively 
in accordance with Chapter II, Part 2, paragraph 11(c) 
of the Washington Treaty, shall be scrapped in the fol- 
lowing manner : 

One of the ships to be scrapped by the United States, 
and two of those to be scrapped by the United Kingdom 
shall be rendered unfit for warlike service, in accordance 
with Chapter II, Part 2, paragraph 111(b) of the Wash- 
ington Treaty, within twelve months from the coming 
into force of the present Treaty. These ships shall be 
finally scrapped, in accordance with paragraph 11(a) or 
(b) of the said Part 2, within twenty-four months from 
the said coming into force. In the case of the second of 
the ships to be scrapped by the United States, and of the 
third and fourth of the ships to be scrapped by the 
United Kingdom, the said periods shall be eighteen and 
thirty months respectively from the coming into force 
of the present Treaty. 

(b) Of the ships to be disposed of under this Article, 
the following may be retained for training purposes : 

by the United States : "Arkansas " or " Wyoming ". 
by the United Kingdom : " Iron Duke ". 
by Japan : " Hiyei ". 

These ships shall be reduced to the condition prescribed 
in Section V of Annex II to Part II of the present 
Treaty. The work of reducing these vessels to the re- 
quired condition shall begin, in the case of the United 
States and the United Kingdom, within twelve months, 
and in the case of Japan within eighteen months from 
the coming into force of the present Treaty; the work 
shall be completed within six months of the expiration of 
the above-mentioned periods. 

Any of these ships which are not retained for training 
purposes shall be rendered unfit for warlike service 
within eighteen months, and finally scrapped within 
thirty months, of the coming into force of the present 


2. Subject to any disposal of capital ships which might 
be necessitated, in accordance with the Washington 
Treaty, by the building by France or Italy of the replace- 
ment tonnage referred to in Article 1 of the present 
Treaty, all existing capital ships mentioned in Chapter 
II, Part 3, Section II of the Washington Treaty and 
not designated above to be disposed of may be retained 
during the term of the present Treaty. 

3. The right of replacement is not lost by delay in 
laying down replacement tonnage, and the old vessel 
may be retained until replaced even though due for scrap- 
ping under Chapter II, Part 3, Section II of the Wash- 
ington Treaty. 

Article 3. 

1. For the purposes of the Washington Treaty, the defi- 
nition of an aircraft carrier given in Chapter II, Part 4 
of the said Treaty is hereby replaced by the following 
definition : 

The expression " aircraft carrier " includes any surface vessel 
of war, whatever its displacement, designed for the specific and 
exclusive purpose of carrying aircraft and so constructed that 
aircraft can be launched therefrom and landed thereon. 

2. The fitting of a landing-on or flying-off platform 
or deck on a capital ship, cruiser or destroyer, provided 
such vessel was not designed or adapted exclusively as an 
aircraft carrier, shall not cause any vessel so fitted to be 
charged against or classified in the category of aircraft 

3. No capital ship in existence on the 1st April, 1930, 
shall be fitted with a landing-on platform or deck. 

Article 4. 

1. No aircraft carrier of 10,000 tons (10,160 metric 
tons) or less standard displacement mounting a gun above 
6.1-inch (155 mm.) calibre shall be acquired by or con- 
structed by or for any of the High Contracting Parties. 

2. As from the coming into force of the present Treaty 
in respect of all the High Contracting Parties, no air- 


craft carrier of 10,000 tons (10,160 metric tons) or less 
standard displacement mounting a gun above 6.1 -inch 
(155 mm.) calibre shall be constructed within the juris- 
diction of any of the High Contracting Parties. 

Article 5. 

An aircraft carrier must not be designed and con- 
structed for carrying a more powerful armament than 
that authorized by Article IX or Article X of the Wash- 
ington Treaty, or by Article 4 of the present Treaty, as 
the case may be. 

Wherever in the said Articles IX and X the calibre 
of 6 inches (152 mm.) is mentioned, the calibre of 6.1 
inches (155 mm.) is substituted therefor. 


Article 6. 

1. The rules for determining standard displacement 
prescribed in Chapter II, Part 4 of the Washington 
Treaty shall apply to all surface vessels of war of each of 
the High Contracting Parties. 

2. The standard displacement of a submarine is the 
surface displacement of the vessel complete (exclusive 
of the water in non- water-tight structure) fully manned, 
engined, and equipped ready for sea, including all arma- 
ment and ammunition, equipment, outfit, provisions for 
crew, miscellaneous stores, and implements of every de- 
scription that are intended to be carried in war, but with- 
out fuel, lubricating oil, fresh water or ballast water of 
any kind on board. 

3. Each naval combatant vessel shall be rated at its dis- 
placement tonnage when in the standard condition. 
The word " ton ", except in the expression "metric 
tons ", shall be understood to be the ton of 2,240 pounds 
(1,016 kilos.). 


Article 7. 

1. No submarine the standard displacement of which 
exceeds 2,000 tons (2,032 metric tons) or with a gun 
above 5.1-inch (130 mm.) calibre shall be acquired by or 
constructed by or for any of the High Contracting 

2. Each of the High Contracting Parties may, how- 
ever, retain, build or acquire a maximum number of three 
submarines of a standard displacement not exceeding 
2,800 tons (2,845 metric tons) ; these submarines may 
carry guns not above 6.1-inch (155 mm.) calibre. 
Within this number, France may retain one unit, already 
launched, of 2,880 tons (2,926 metric tons), with guns the 
calibre of which is 8 inches (203 mm.). 

3. The High Contracting Parties may retain the sub- 
marines which they possessed on the 1st April, 1930, hav- 
ing a standard displacement not in excess of 2,000 tons 
(2,032 metric tons) and armed with guns above 5.1-inch 
(130 mm.) calibre. 

4. As from the coming into force of the present Treaty 
in respect of all the High Contracting Parties, no sub- 
marine the standard displacement of which exceeds 2,000 
tons (2,032 metric tons) or with a gun above 5.1-inch 
(130 mm.) calibre shall be constructed within the juris- 
diction of any of the High Contracting Parties, except 
as provided in paragraph 2 of this Article. 

Article 8. 

Subject to any special agreements which may submit 
them to limitation, the following vessels are exempt from 
limitation : 

(a) naval surface combatant vessels of 600 tons (610 
metric tons) standard displacement and under; 

(b) naval surface combatant vessels exceeding 600 
tons (610 metric tons), but not exceeding 2,000 tons 
(2,032 metric tons) standard displacement, provided 
they have none of the following characteristics : 


(1) mount a gun above 6.1-inch (155 mm.) calibre; 

(2) mount more than four guns above 3-inch (76 mm.) 
calibre ; 

(3) are designed or fitted to launch torpedoes; 

(4) are designed for a speed greater than twenty knots. 

(c) naval surface vessels not specifically built as fight- 
ing ships which are employed on fleet duties or as troop 
transports or in some other way than as fighting ships, 
provided they have none of the following characteristics : 

(1) mount a gun above 6.1-inch (155 mm.) calibre; 

(2) mount more than four guns above 3-inch (76 mm.) 
calibre ; 

(3) are designed or fitted to launch torpedoes; 

(4) are designed for a speed greater than twenty 
knots ; 

(5) are protected by armour plate; 

(6) are designed or fitted to launch mines; 

(7) are fitted to receive aircraft on board from the 

(8) mount more than one aircraft-launching appa- 
ratus on the centre line ; or two, one on each broadside ; 

(9) if fitted with any means of launching aircraft into 
the air, are designed or adapted to operate at sea more 
than three aircraft. 

Article 9. 

The rules as to replacement contained in Annex I to 
this Part II are applicable to vessels of war not exceed- 
ing 10,000 tons (10,160 metric tons) standard displace- 
ment, with the exception of aircraft carriers, whose re- 
placement is governed by the provisions of the Washing- 
ton Treaty. 

Article 10. 

Within one month after the date of laying down and 
the date of completion respectively of each vessel of war, 
other than capital ships, aircraft carriers and the vessels 
exempt from limitation under Article 8, laid down or 
completed by or for them after the coming into force of 
the present Treaty, the High Contracting Parties shall 


communicate to each of the other High Contracting 
Parties the information detailed below: 

(a) the date of laying the keel and the following 

particulars : 

classification of the vessel; 

standard displacement in tons and metric tons; 

principal dimensions, namely : length at water- 
line, extreme beam at or below water-line ; 

mean draft at standard displacement; 

calibre of the largest gun. 

(b) the date of completion together with the foregoing 
particulars relating to the vessel at that date. 

The information to be given in the case of capital ships 
and aircraft carriers is governed by the Washington 

Article 11. 

Subject to the provisions of Article 2 of the present 
Treaty, the rules for disposal contained in Annex II 
to this Part II shall be applied to all vessels of war to 
be disposed of under the said Treaty, and to aircraft 
carriers as defined in Article 3. 

Article 12. 

1. Subject to any supplementary agreements which 
may modify, as between the High Contracting Parties 
concerned, the lists in Annex III to this Part II, the 
special vessels shown therein may be retained and their 
tonnage shall not be included in the tonnage subject to 

2. Any other vessel constructed, adapted or acquired 
to serve the purposes for which these special vessels are 
retained shall be charged against the tonnage of the 
appropriate combatant category, according to the charac- 
teristics of the vessel, unless such vessel conforms to the 
characteristics of vessels exempt from limitation under 
Article 8. 


3. Japan may, however, replace the minelayers "Aso " 
and " Tokiwa " by two new minelayers before the 31st 
December, 1936. The standard displacement of each of 
the new vessels shall not exceed 5,000 tons (5,080 metric 
tons) ; their speed shall not exceed twenty knots, and 
their characteristics shall conform to the provisions of 
paragraph (b) of Article 8. The new vessels shall be 
regarded as especial vessels and their tonnage shall not 
be chargeable to the tonnage of any combatant category. 
The "Aso " and " Tokiwa " shall be disposed of in 
accordance with Section I or II of Annex II to this Part 
II, on completion of the replacement vessels. 

4. The "Asama ", " Yakumo ", " Izumo ", " Iwate " and 
,; Kasnga " shall be disposed of in accordance with Sec- 
tion I or II of Annex II to this part II when the first 
three vessels of the " Kuma " class have been replaced by 
new vessels. These three vessels of the " Kuma " class 
shall be reduced to the condition prescribed in Section V, 
subparagraph (b)2 of Annex II to this Part II, and are 
to be used for training ships, and their tonnage shall not 
thereafter be included in the tonnage subject to limita- 

Article 13. 

Existing ships of various types, which, prior to the 1st 
April, 1930, have been used as stationary training estab- 
lishments or hulks, may be retained in a nonseagoing con- 


Rules for replacement. 

Section 1. — Except as provided in Section III of this Annex 
and Part III of the present Treaty, a vessel shall not be replaced 
before it becomes "over-age". A vessel shall be deemed to be 
"over-age" when the following number of years have elapsed 
since the date of its completion. 

(a) For a surface vessel exceeding 3,000 tons (3.048 metric 
tons) but not exceeding 10,000 tons (10,160 metric tons) if 
standard displacement : 


(i) if laid down before the 1st January 1920: 16 years; 
(ii) if laid down after the 31st December 1919: 20 years. 

(b) For a surface vessel not exceeding 3,000 tons (3,048 metric 
tons) standard displacement: 

( i ) if laid down before the 1st January, 1921 : 12 years ; 
(ii) if laid down after the 31st December, 1920: 16 years. 

(c) For a submarine: 13 years. 

The keels of replacement tonnage shall not be laid down more 
than three years before the year in which the vessel to be replaced 
becomes " over-age " ; but this period is reduced to two years in 
the case of any replacement surface vessel not exceeding 3,000 
tons (3,048 metric tons) standard displacement. 

The right of replacement is not lost by delay in laying down 
replacement tonnage. 

Section II. — Except as otherwise provided in the present 
Treaty, the vessel or vessels, whose retention would cause the 
maximum tonnage permitted in the category to be exceeded, shall, 
on the completion or acquisition of replacement tonnage, be dis- 
posed of in accordance with Annex II to this Part II. 

Section III. — In the event of loss or accidental destruction a 
vessel may be immediately replaced. 


Rules for disposal of Vessels of War. 

The present Treaty provides for the disposal of vessels of war 
in the following ways : 

(i) by scraping (sinking or breaking up) ; 

(ii) by converting the vessel to a hulk; 
(iii) by converting the vessel to target use exclusively; 
(iv) by retaining the vessel exclusively for experimental 
purposes ; 

(v) by retaining the vessel exclusively for training purposes. 

Any vessel of war to be disposed of, other than a capital ship, 
may either be scrapped or converted to a hulk at the option of the 
High Contracting Party concerned. 

Vessels, other than capital ships, which have been retained for 
target, experimental or training purposes, shall finally be scrapped 
or converted to hulks. 

Section I. — Vessels to be scrapped. 

(a) A vessel to be- disposed of by scrapping, by reason of its 
replacement, must be rendered incapable of warlike service within 
six months of the date of the completion of its successor, or of 


the first of its successors if there are more than one. If, however, 
the completion of the new vessel or vessels be delayed, the work 
of rendering the old vessel incapable of warlike service shall, 
nevertheless, be completed within four and a half years from the 
date of laying the keel of the new vessel, or of the first of the new 
vessels ; but should the new vessel, or any of the new vessels, be a 
surface vessel not exceeding 3,000 tons (3,048 metric tons) stand- 
ard displacement, this period is reduced to three and a half years, 
(fr) A vessel to be scrapped shall be considered incapable of 
warlike service when there shall have been removed and landed 
or else destroyed in the ship : 

(1) all the guns and essential parts of guns*, fire control tops 
and revolving parts of- all barbettes and turrets ; 

(2) all hydraulic or electric machinery for operating turrets; 

(3) all fire control instruments and rangefinders ; 

(4) all ammunition, explosives, mines and mine rails; 

(5) all torpedoes, war heads, torpedo tubes and training racks; 

(6) all wireless telegraphy installations; 

(7) all main propelling machinery, or alternatively the ar- 
moured conning tower and all side armour plate ; 

(8) all aircraft cranes, derricks, lifts and launching apparatus. 
All landing-on or flying-off platforms and decks, or alternatively 
all main propelling machinery ; 

(9) In addition, in the case of submarines, all main storage 
batteries, air compressor plants and ballast pumps. 

(0) Scrapping shall be finally effected in either of the following 
ways within twelve months of the date on which the work of 
rendering the vessel incapable of warlike service is due for com- 
pletion : 

(1) permanent sinking of the vessel; 

(2) breaking the vessel up; this shall always include the de- 
struction or removal of all machinery, boilers and armour, and 
all deck, side and bottom plating. 

Section II. — Vessels to be converted to hulks. 

A vessel to be disposed of by conversion to a hulk shall be con- 
sidered finally disposed of when the conditions prescribed in Sec- 
tion I, paragraph (b), have been complied with, omitting sub- 
paragraphs (6), (7) and (8), and when the following have been 
effected : 

(1) mutilation beyond repair of all propeller shafts, thrust 
blocks, turbine gearing or main propelling motors, and turbines 
or cylinders of main engines ; 

(2) removal of propeller brackets; 

(3) removal and breaking up of all aircraft lifts, and the re- 
moval of all aircraft cranes, derricks and launching apparatus. 


The vessel must be put in the above condition within the same 
limits of time as provided in Section I for rendering a vessel 
incapable of warlike service. 

Section III. — Vessels to be converted to target use. 

(a) A vessel to be disposed of by conversion to target use ex- 
clusively shall be considered incapable of warlike service when 
there have been removed and landed, or rendered unserviceable on 
board, the following: 

(1) all guns ; 

(2) all fire control tops and instruments and main fire control 

communication wiring ; 

(3) all machinery for operating gun mountings or turrets; 

(4) all ammunition, explosives, mines, torpedoes and torpedo 

tubes ; 

(5) all aviation facilities and accessories. 

The vessel must be put into the above condition within the same 
limits of time as provided in Section I for rendering a vessel in- 
capable of warlike service. 

(&) In addition to the rights already possessed by each High 
Contracting Party under the Washington Treaty, each High Con- 
tracting Party is permitted to retain, for target use exclusively, 
at any one time : 

(1) not more than three vessels (cruisers or destroyers) but 

of these three vessels only one may exceed 3,000 tons 
(3,048 metric tons) standard displacement; 

(2) one submarine. 

(e) On retaining a vessel for target use, the High Contracting 
Party concerned undertakes not to recondition it for warlike 

Section IV. — Vessels retained for experimental purposes. 

(a) A vessel to be disposed of by conversion to experimental 
purposes exclusively shall be dealt with in accordance with the 
provisions of Section III (a) of this Annex. 

(&) Without prejudice to the general rules, and provided that 
due notice be given to the other High Contracting Parties, reason- 
able variation from the conditions prescribed in Section III (a) of 
this Annex, in so far as may be necessary for the purposes of a 
special experiment, may be permitted as a temporary measure. 

Any High Contracting Party taking advantage of this provision 
is required to furnish full details of any such variations and the 
period for which they will be required. 


(0) Each High Contracting Party is permitted to retain for ex- 
perimental purposes exclusively at any one time : 

(1) not more than two vessels (cruisers or destroyers), but of 

these two vessels only one may exceed 3,000 tons (3,048 
metric tons) standard displacement; 

(2) one submarine. 

(d) The United Kingdom is allowed to retain, in their present 
conditions, the monitor " Roberts ", the main armament guns and 
mountings of which have been mutilated, and the seaplane carrier 
"Ark Royal ", until no longer required for experimental purposes. 
The retention of these two vessels is without prejudice to the 
retention of vessels permitted under (c) above. 

(e) On retaining a vessel for experimental purposes the High 
Contracting Party concerned undertakes not to recondition it for 
warlike service. 

Section V. — Vessels retained for training purposes. 

(a) In addition to the rights already possessed by any High 
Contracting Party under the Washington Treaty, each High Con- 
tracting Party is permitted to retain for training purposes exclu- 
sively the following vessels : 

United States: 1 capital ship ("Arkansas" or "Wyoming") ; 
France : 2 surface vessels, one of which may exceed 3,000 tons 

(3,048 metric tons) standard displacement; 
United Kingdom : 1 capital ship (" Iron Duke ") ; 
Italy: 2 surface vessels, one of which may exceed 3,000 tons 

(3,048 metric tons) standard displacement; 
Japan : 1 capital ship (" Hiyei "), 3 cruisers (" Kuma " class).. 

(b) Vessels retained for training purposes under the provisions 
of paragraph (a) shall, within six months of the date on which 
they are required to be disposed of, be dealt with as follows : 

1. Capital Ships. 
The following is to be carried out: 

(1) removal of main armament guns, revolving parts of all bar- 
bettes and turrets; machinery for operating turrets: but three 
turrets with their armament may be retained in each ship ; 

(2) removal of all ammunition and explosives in excess of the 
quantity required for target practice training for the guns remain- 
ing on board ; 

(3) removal of conning tower and the side armour belt between 
the foremost and aftermost barbettes; 

(4) removal or mutilation of all torpedo tubes ; 

(5) removal or mutilation on board of all boilers in excess of 
the number required for a maximum speed of eighteen knots. 

69574—32 11 



2. Other surface vessels retained ~by France, Italy and Japan. 
The following is to be carried out: 

(1) removal of one half of the guns, but four guns of main 
calibre may be retained on each vessel ; 

(2) removal of all torpedo tubes; 

(3) removal of all aviation facilities and accessories; 

(4) removal of one half of the boilers. 

(c) The High Contracting Party concerned undertakes that 
vessels retained in accordance with the provisions of this Section 
shall not be used for any combatant purpose. 


Special vessels. 
United States. 

Name and type of vessel. Tons. 

Aroostook — Minelayer 4, 950 

Oglala— Minelayer 4,950 

Baltimore — Minelayer 4, 413 

San Francisco— Minelayer 4,083 

Cheyenne— Monitor 2, 800 

Helena— Gunboat-. 1,392 

Isabel— Yacht 938 

Niagara— Yacht. 2, 600 

Name and type of vessel. Tons. 

Bridgeport — Destroyer tender 11, 750 

Dobbin — Destroyer tender 12,450 

Melville— Destroyer tender. _. 7, 150 

Whitney — Destroyer tender.. 12,450 

Holland — Submarine tender 11,570 

Henderson— Naval transport 10,000 

91, 496 


Name and type of vessel. Tons. 

Castor— Minelayer 3,150 

Pollux — Minelayer 2, 461 

Commandant-Teste — Seaplane car- 
rier 10,000 





„ 604 




Aisne— Despatch vessel 


i it 


t <« 


« << 


< <« 


t it 


t it 


< << 

Displacement . 
Name and type of vessel. Tons. 

Nancy — Despatch vessel- 
Calais " 
Lassigny " 
Les Eparges " 
Remiremont " 
Tahure " 
Toul " 
Epinal " 
Lievin " 










(— )— Netlayer 2,293 


British Commonwealth of Nations 

Name and type of vessel. Tons. 

Adventure— Minelayer (United 

Kingdom) 6,740 

Albatross— Seaplane carrier (Aus- 
tralia) 5,000 

Erebus— Monitor (United King- 
dom) 7,200 

Terror— Monitor (United King- 
dom) 7,200 

Name and type of vessel. Tons. 

Marshal Soult — Monitor (United 

Kingdom) 6,400 

Clive— Sloop (India) 2,021 

Med way— Submarine depot ship 
(United Kingdom) 15,000 




Name and type of vessel. Tons. 

Miraglia— Seaplane carrier 4,880 

Faa di Bruno— Monitor 2, 800 

Monte Grappa— Monitor 605 

Montello— Monitor 605 

Monte Cengio — Ex-monitor 500 

Displacement • 
Name and type of vessel. Tons. 

Monte Novegno — E x-monitor 500 

Campania— Sloop 2,070 


Name and type of vessel. Tons. 

Iwate— Old cruiser. 9, 180 

Kasuga " " 7,080 

Yodo— Gunboat - 1,320 

Name and type of vessel. Tons. 

Aso— Minelayer. 7, 180 

Tokiwa " 9,240 

Asama— Old cruiser .-. 9,240 

Yakumo " " 9,010 

Izumo " " .- 9,180 61,430 


The President of the United States of America, His 
Majesty the King of Great Britain, Ireland and the 
British Dominions beyond the Seas, Emperor of India, 
and His Majesty the Emperor of Japan have agreed as 
between themselves to the provisions of this Part III : 

Article 14. 

The naval combatant vessels of the United States, the 
British Commonwealth of Nations and Japan, other than 
capital ships, aircraft carriers and all vessels exempt 
from limitation under Article 8, shall be limited during 
the term of the present Treaty as provided in this Part 
III, and, in the case of special vessels, as provided in 
Article 12. 

Article 15. 

For the purpose of this Part III the definition of the 
cruiser and destroyer categories shall be as follows: 


Surface vessels of war, other than capital ships or air- 
craft carriers, the standard displacement of which ex- 
ceeds 1,850 tons (1,880 metric tons), or with a gun above 
5.1-inch (130 mm.) calibre. 



The cruiser category is divided into two sub-categories, 
as follows : 

(a) cruisers carrying a gun above 6.1-inch (155 mm.) 
calibre ; 

(b) cruisers carryng a gun not above 6.1 -inch (155 
mm.) calibre. 


Surface vessels of war the standard displacement of 
which does not exceed 1,850 tons (1,880 metric tons), 
and with a gun not above 5.1-inch (130 mm.) calibre. 

Article 16. 

1. The completed tonnage in the cruiser, destroyer and 
submarine categories which is not to be exceeded on the 
31st December, 1936, is given in the following table : 



(a) with guns of 
more than 6.1- 
inch (155 mm.) 

(6) with guns of 
6.1-inch (155 
mm. calibre or 



United States. 

British Common- 
wealth of Nations. 


180,000 tons (182,880 
metric tons) 

143,500 tons (145,796 
metric tons) 

146,800 tons (149,149 
metric tons) 

192,200 tons (195,275 
metric tons) 

108,400 tons (110,134 
metric tons) 

100,450 tons (102,057 
metric tons) 

150,000 tons (152,400 
metric tons)^ 

52,700 tons (53,543 
metric tons) 

150,000 tons (152,400 
metric tons) 

52,700 tons (53,543 
metric tons) 

105,500 tons (107,188 
metric tons) 

52,700 tons (53,543 
metric tons) 

2. Vessels which cause the total tonnage in any category 
to exceed the figures given in the foregoing table shall be 
disposed of gradually during the period ending on the 
31st December, 1936. 

3. The maximum number of cruisers of sub-category 
(a) shall be as follows: for the United States, eighteen; 
for the British Commonwealth of Nations, fifteen; for 
Japan, twelve. 

4. In the destroyer category not more than sixteen per 
cent, of the allowed total tonnage shall be employed in 
vessels of over 1,500 tons (1,524 metric tons) standard 


displacement. Destroyers completed or under construc- 
tion on the 1st April, 1930, in excess of this percentage 
may be retained, but no other destroyers exceeding 1,500 
tons (1,524 metric tons) standard displacement shall be 
constructed or acquired until a reduction to such sixteen 
per cent, has been effected. 

5. Not more than twenty-five per cent, of the allowed 
total tonnage in the cruiser category may be fitted with a 
landing-on platform or deck for aircraft. 

6. It is understood that the submarines referred to in 
paragraphs 2 and 3 of Article 7 will be counted as part 
of the total submarine tonnage of the High Contracting 
Party concerned. 

7. The tonnage of any vessels retained under Article 13 
or disposed of in accordance with Annex II to Part II of 
the present Treaty shall not be included in the tonnage 
subject to limitation. 

Article 17. 

A transfer not exceeding ten per cent, of the allowed 
total tonnage of the category or sub-category into which 
the transfer is to be made shall be permitted between 
cruisers of sub-category (b) and destroyers. 

Article 18. 

The United States contemplates the completion by 
1935 of fifteen cruisers of sub-category (a) of an aggre- 
gate tonnage of 150,000 tons (152,400 metric tons). For 
each of the three remaining cruisers of sub-category (a) 
which it is entitled to construct the United States may 
elect to substitute 15,166 tons (15,409 metric tons) of cruis- 
ers of sub-category (&). Incase the United States shall 
construct one or more of such three remaining cruisers 
of sub-category (a), the sixteenth unit will not be laid 
clown before 1933 and will not be completed before 1936 ; 
the seventeenth will not be laid down before 1934 and 
will not be completed before 1937; the eighteenth will 


not be laid down before 1935 and will not be completed 
before 1938. 

Article 19. 

Except as provided in Article 20, the tonnage laid 
down in any category subject to limitation in accord- 
ance with Article 16 shall not exceed the amount neces- 
sary to reach the maximum allowed tonnage of the cate- 
gory, or to replace vessels that become " over-age " before 
the 31st December, 1936. Nevertheless, replacement ton- 
nage may be laid down for cruisers and submarines that 
become " OA^er-age " in 1937, 1938, and 1939, and for 
destroyers that become " over-age " in 1937 and 1938. 

Article 20. 

Notwithstanding the rules for replacement contained 
in Annex I to Part II : 

(a) The " Frobisher " and "Effingham" (United 
Kingdom) may be disposed of during the year 1936. 
Apart from the cruisers under construction on the 1st 
April, 1930, the total replacement tonnage of cruisers 
to be completed, in the case of the British Common- 
wealth of Nations, prior to the 31st December, 1936, shall 
not exceed 91,000 tons (92,456 metric tons). 

(&) Japan may replace the " Tama " by new construc- 
tion to be completed during the year 1936. 

(c) In addition to replacing destroyers becoming 
" over-age " before the 31st December, 1936, Japan may 
lay down, in each of the years 1935 and 1936, not more 
than 5,200 tons (5,283 metric tons) to replace part of the 
vessels that become " over-age " in 1938 and 1939. 

(d) Japan may anticipate replacement during the 
term of the present Treaty by laying down not more than 
19,200 tons (19,507 metric tons) of submarine tonnage, 
of which not more than 12,000 tons (12,192 metric tons) 
shall be completed by the 31st December, 1936. 


Article 21. 

If, during the term of the present Treaty, the require- 
ments of the national security of any High Contracting 
Party in respect of vessels of war limited by Part III of 
the present Treaty are in the opinion of that Party mate- 
rially affected by new construction of any Power other 
than those who have joined in Part III of this Treaty, 
that High Contracting Party will notify the other 
Parties to Part III as to the increase required to be made 
in its own tonnages within one or more of the categories 
of such vessels of war, specifying particularly the pro- 
posed increases and the reasons therefor, and shall be 
entitled to make such increase. Thereupon the other 
Parties to Part III of this Treaty shall be entitled to 
make a proportionate increase in the category or cate- 
gories specified ; and the said other Parties shall promptly 
advise with each other through diplomatic channels as 
to the situation thus presented. 


Article 22. 

The following are accepted as established rules of 
International Law : 

(1) In their action with regard to merchant ships, 
submarines must conform to the rules of International 
Law to w r hich surface vessels are subject. 

(2) In particular, except in the case of persistent re- 
fusal to stop on being duly summoned, or of active 
resistance to visit or search, a warship, whether surface 
vessel or submarine, may not sink or render incapable of 
navigation a merchant vessel without having first placed 
passengers, crew and ship's papers in a place of safety. 
For this purpose the ship's boats are not regarded as a 
place of safety unless the safety of the passengers and 
crew is assured, in the existing sea and weather condi- 
tions, by the proximity of land, or the presence of another 
vessel which is in a position to take them on board. 


The High Contracting Parties invite all other Powers 
to express their assent to the above rules. 


Article 23. 

The present Treaty shall remain in force until the 31st 
December, 1936, subject to the following exceptions : 

(1) Part IV shall remain in force without limit of 

(2) the provisions of Articles 3, 4 and 5, and of Arti- 
cle 11 and Annex II of Part II so far as they relate to 
aircraft carriers, shall remain in force for the same period 
as the Washington Treaty. 

Unless the High Contracting Parties should agree 
otherwise by reason of a more general agreement limiting 
naval armaments, to which they all become parties, they 
shall meet in conference in 1935 to frame a new treaty to 
replace and to carry out the purposes of the present 
Treaty, it being understood that none of the provisions 
of the present Treaty shall prejudice the attitude of any 
of the High Contracting Parties at the conference 
.agreed to. 


Article 24. 

1. The present Treaty shall be ratified by the High 
Contracting Parties in accordance with their respective 
constitutional methods and the ratifications shall be de- 
posited at London as soon as possible. Certified copies 
of all the proces-verbaiix of the deposit of ratifications 
will be transmitted to the Governments of all the High 
Contracting Parties. 

2. As soon as the ratifications of the United States of 
America, of His Majesty the King of Great Britain, 
Ireland and the British Dominions beyond the Seas, 
Emperor of India, in respect of each and all of the Mem- 
bers of the British Commonwealth of Nations as enumer- 
ated in the preamble of the present Treaty, and of His 


Majesty the Emperor of Japan have been deposited, the 
Treaty shall come into force in respect of the said High 
Contracting Parties. 

3. On the date of the coming into force referred to in 
the preceding paragraph, Parts I, II, IV and V of the 
present Treaty will come into force in respect of the 
French Republic and the Kingdom of Italy if their 
ratifications have been deposited at that date ; otherwise 
these Parts will come into force in respect of each of 
those Powers on the deposit of its ratification. 

4. The rights and obligations resulting from Part III 
of the present Treaty are limited to the High Contracting 
Parties mentioned in paragraph 2 of this Article. The 
High Contracting Parties will agree as to the date on 
which, and the conditions under which, the obligations 
assumed under the said Part III by the High Contracting 
Parties mentioned in paragraph 2 of this Article will 
bind them in relation to France and Italy; such agree- 
ment will determine at the same time the corresponding 
obligations of France and Italy in relation to the other 
High Contracting Parties. 

Article 25. 

After the deposit of the ratifications of all the High 
Contracting Parties, His Majesty's Government in the 
United Kingdom of Great Britain and Northern Ireland 
will communicate the provisions inserted in Part IV of 
the present Treaty to all Powers which are not signa- 
tories of the said Treaty, inviting them to accede thereto 
definitely and without limit of time. 

Such accession shall be effected by a declaration ad- 
dressed to His Majesty's Government in the United King- 
dom of Great Britain and Northern Ireland. 

Article 26. 

The present Treaty, of which the French and English 
texts are both authentic, shall remain deposited in the 



archives of His Majesty's Government in the United 
Kingdom of Great Britain and Northern Ireland. Duly 
certified copies thereof shall be transmitted to the Gov- 
ernments of all the High Contracting Parties. 

In faith whereof the above-named Plenipotentiaries 
have signed the present Treaty and have affixed thereto 
their seals. 

Done at London, the twenty-second day of April, nine- 
teen hundred and thirty. 


Henry L. Stimsox. 
Charles G. Dawes. 
Charles F. Adams. 
Joseph T. Robixsox. 
David A. Reed. 
Hugh Gibsox. 
Dwight W. Morrow. 
Aristide Briaxd. 
j. l. dumesxil. 
A. de Fleuriau. 
J. Ramsay MacDoxald. 
Arthur Hexdersox. 
A. V. Alexander. 
W. Wedgwood Bexx. 
Philippe Roy. 
James E. Fextox t . 
T. M. Wilford. 
C. T. te Water. 
T. A. Smiddy. 
Atul C. Chatterjee. 
G. Siriaxxi. 
A. C. Bordoxaro. 
Alfredo Actox. 
R. Wakatsuki. 
Takeshi Takarabe. 
T. Matsudaira. 
M. Nagai. 



1. The British Secretary of State for Foreign Affairs 
{Henderson) to the American Ambassador in Great 
Britain (Dawes), October 7, 1929 

I have the honour to transmit to your excellency here- 
with copies of the notes which I am to-day addressing to 
the French, Italian, and Japanese Ambassadors in Lon- 
don inviting the French, Italian, and Japanese Govern- 
ments to participate in a five-power conference to deal 
with the question of naval disarmament, which it is 
proposed to hold in London in the latter part of January 

2. As I understand that the Government of the United 
States concur in the terms of the enclosed notes, I shall 
be grateful if your excellency will be so good as to con- 
firm my impression that the} 7 " will find it possible to 
participate in the conference above mentioned. 


The British Secretary of State for Foreign Affairs 
(Henderson) to the French, Italian, and Japanese 
Ambassadors in Great Britain, October 7, 1929 

I have the honour to inform your excellency that the 
informal conversations on the subject of naval disarma- 
ment which have been proceeding in London during the 
last three months between the Prime Minister and the 
Ambassador of the United States have now reached a 
stage at which it is possible to say that there is no point 
outstanding of such serious importance as to prevent an 

From time to time the Prime Minister has notified 
your excellency of the progress made in these discussions 
and I now have the honour to state that provisional and 
informal agreement has been reached on the following 
principles : 


1. The conversations have been one of the results of 
the Treaty for the Kenunciation of War signed at Paris 
in 1928 which brought about a realignment of our 
national attitudes on the subject of security in conse- 
quence of the provision that war should not be used as an 
instrument of national policy in the relations of nations 
one to another. Therefore the Peace Pact has been 
regarded as the starting point of agreement. 

2. It has been agreed to adopt the principle of parity 
in each of the several categories and that such parity 
shall be reached by December 31st, 1936. Consultation 
between His Majesty's Government in the United King- 
dom and His Majesty's Government in the Dominions 
has taken place and it is contemplated that the pro- 
gramme of parity on the British side should be related 
to naval forces of all parts of the Empire. 

3. The question of battleship strength was also touched 
upon during the conversations and it has been agreed in 
these conversations that subject to the assent of other 
signatory powers it would be desirable to reconsider the 
battleship replacement programmes provided for in the 
Washington treaty of 1922 with the view of diminishing 
the amount of replacement construction implied under 
that treaty. 

4. Since both the Government of the United States and 
His Majesty's Government in the United Kingdom ad- 
here to the attitude that they have publicly adopted in 
regard to the desirability of securing the total abolition 
of the submarine, this matter hardly gave rise to dis- 
cussion during the recent conversations. They recognize, 
however, that no final settlement on this subject can be 
reached except in conference with the other naval Powers. 

In view of the scope of these discussions both Govern- 
ments consider it most desirable that a conference should 
be summoned to consider the categories not covered by 
the Washington treaty and to arrange for and deal with 
the questions covered by the second paragraph of Article 

21 of that treaty. It is our earnest hope that the 

Government will agree to the desirability 

of such a conference. His Majesty's Government in the 
United Kingdom and the Government of the United 
States are in accord that such a conference should be 


held in London at the beginning of the third week of 

January, 1930, and it is hoped that the 

Government will be willing to appoint representatives 
to attend it. 

A similar invitation is being addressed to the Govern- 
ments of and the United States; 

and His Majesty's Governments in the Dominions are 
being asked to appoint representatives to take part in 
the conference. I should be grateful if your excellency 
would cause the above invitation to be addressed to the 

In the same way as the two Governments have kept 
3'our excellency informally an courant of the recent dis- 
cussions, so now His Majesty's Government will be will- 
ing, in the interval before the proposed conference, to 
continue informal conversations with your excellency on 
any points which may require elucidation. The impor- 
tance of reviewing the whole naval situation at an early 
date is so vital in the interests of general disarmament 
that I trust that your excellency's Government will see 
their way to accept this invitation and that the date pro- 
posed will be agreeable to them. 

His Majesty's Government in the United Kingdom pro- 
pose to communicate to you in due course their views as 
to the subjects which they think should be discussed at 
the conference, and will be glad to receive a correspond- 
ing communication from the 


It is hoped that at this conference the principal naval 
powers may be successful in reaching agreement. I 
should like to emphasize that His Majesty's Government 
have discovered no inclination in any quarter to set up 
new machinery for dealing with the naval disarmament 
question ; on the contrary, it is hoped that by this means 
a text can be elaborated which will facilitate the task of 
the League of Nations Preparatory Commission and of 
the subsequent General Disarmament Conference. ! 


2. The American Charge d'Aff aires in Great Britain 
(Atherton) to the British Secretary of State for For- 
eign Affaires (Henderson), October 10, 1929 

I have the honor to refer to the note which you were 
good enough to address to the Ambassador on October 
7th, and I take great pleasure in informing you that the 
American Government hastens to accept the invitation of 
His Majesty's Government to a conference on naval 
armaments to take place in London the latter part of 
January, which will unite the powers signatory to the 
Washington treaty in a discussion which will anticipate 
the problems raised under Article 21 of that treaty as 
well as broaden its whole scope by the inclusion of the 
other categories of ships. 

3. Statement of the President of the United States and 

the British Prime Minister, October 10, 1929 

During the last few days we have had an opportunity, 
in the informal talks in which we have engaged, not only 
to review the conversations on a naval agreement which 
have been carried on during this summer between us, but 
also to discuss some of the more important means by 
which the moral force of our countries can be exerted 
for peace. 

We have been guided by the double hope of settling our 
own differences on naval matters and so establishing un- 
clouded good will, candor, and confidence between us, 
and also of contributing something to the solution of the 
problem of peace in which all other nations are interested 
and which calls for their cooperation. 

In signing the Paris Peace Pact 56 nations have de- 
clared that war shall not be used as an instrument of 
national policy. We have agreed that all disputes shall 
be settled by pacific means. Both our Governments re- 
solve to accept the Peace Pact not only as a declaration 
of good intentions but as a positive obligation to direct 
national policy in accordance with its pledge. 


The part of each of our Governments in the promotion 
of world peace will be different, as one will never consent 
to become entangled in European diplomacy and the 
other is resolved to pursue a policy of active cooperation 
with its European neighbors; but each of our Govern- 
ments will direct its thoughts and influence towards 
securing and maintaining the peace of the world. 

Our conversations have been largely confined to the 
mutual relations of the two countries in the light of the 
situation created by the signing of the Peace Pact. 
Therefore, in a new and reinforced sense the two Govern- 
ments not only declare that war between them is un- 
thinkable, but that distrusts and suspicions arising from 
doubts and fears which may have been justified before 
the Peace Pact must now cease to influence national 
policy. We approach old historical problems from a new 
angle and in a new atmosphere. On the assumption that 
war between us is banished, and that conflicts between 
our military or naval forces cannot take place, these 
problems have changed their meaning and character, and 
their solution, in ways satisfactory to both countries, has 
become possible. 

We have agreed that those questions should become 
the subject of active consideration between us. They 
involve important technical matters requiring detailed 
study. One of the hopeful results of the visit which is 
now terminating officially has been that our two Govern- 
ments will begin conversations upon them following the 
same method as that which has been pursued during the 
summer in London. 

The exchange of views on naval reduction has brought 
the two nations so close to agreement that the obstacles 
in previous conferences arising out of Anglo-American 
disagreements seem now substantially removed. We have 
kept the nations which took part in the Washington 
Naval Conference of 1922 informed of the progress of 
our conversations, and we have now proposed to them 
that we should all meet together and try to come to a 


common agreement which would justify each in making 
substantial naval reductions. An agreement on naval 
armaments can not be completed without the cooperation 
of other naval powers, and both of us feel sure that, by 
the same free and candid discussion of needs which has 
characterized our conversations, such mutual understand- 
ings will be reached as will make naval agreement next 
January possible, and thus remove this serious obstacle 
to the progress of world disarmament. 

Between now and the meeting of the proposed confer- 
ence in January, our Governments will continue con- 
versations with the other powers concerned, in order to 
remove as many difficulties as possible before the official 
and formal negotiations open. 

In view of the security afforded by the Peace Pact, we 
have been able to end, we trust forever, all competitive 
building between ourselves with the risk of war and the 
waste of public money involved, by agreeing to a parity 
of fleets, category by category. 

Success at the coming conference will result in a large 
decrease in the naval equipment of the world and, what 
is equally important, the reduction of prospective pro- 
grams of construction which would otherwise produce 
competitive building to an indefinite amount. 

We hope and believe that the steps we have taken will 
be warmly welcomed by the people whom we represent 
as a substantial contribution to the efforts universally 
made by all nations to gain security for peace not by 
military organization but by peaceful means rooted in 
public opinion and enforced by a sense of justice in the 
civilized world. 



Aerial warfare, laws of 99 

Aircraft : 

Belligerent 98 

Entry into neutral State 109 

Deviation 110' 

Foreign, Swiss ordinance 133 

In neutral ports 134 

In Panama Canal Zone 132 

Submarines and 12, 101 

Summons by ' 102 

Use in war 100 


Protection of 69 

Renunciation of protection 95 

Armament : 

Defensive 12, 24, 31, 42, 64 

Offensive 42, 64 

Arrest, immunities of States from 87 

Asylum 73 

Batiments de guerre 42 

Belligerent rights : 

British practice, at sea 56 

In Suez ('anal 116 

Berlzsi Bros. Go. v. Steamship Pesaro, case of 50 

Blockade _-__ 56,60 

Suez Canal and 116 

Effective 19, 92 

Bluefields 74,92 

Neutral zone 80 

Bounties 0,47 

Bunau-Varilla-Hay treaty 131 

Burden of proof 63 

Brussels Convention, 1910 85 

Canals : 

As place of refuge 123 

In war time 115 

Ports of access 116 

Capture 28, 38, 53 

Right of 60 

Joint 21 

Cargo, release of United States owned S6 

Caribbean Sea. islands in, United States lease of 79 

Central American Republics, United States recognition 

policy SO 

69574—81 12 16 9 

170 INDEX 


Coolidge, President, on treaty of 1923 78 

Certificates 55 

Chile, landing of forces in 72 

Churchill, Lord, on defensively armed ships 23 

Committee of jurists, 1923 105, 109 

Condemnation 44,53,60 

Continuous voyage 57 

Contraband 38, 56, 60 

Absolute 58 

Classification of 57 

Conditional 58 

Conversion 10, 17, 42, 50, 112 

Days of grace 17, 42, 99, 126 

Declaration of London, 1909 19, 58 

Declaration of Paris, 1856 10,19,56,60 

De facto governments. United States and 82 

Defense, ships armed for 6, 12, 16, 24, 32, 64 

Derfflinger, case of the 126 

Deserters : . 90 

Detention 38, 43, 55, 60, 63 

Deviation, by aircraft 104,110,112 

Dollar diplomacy 82 

Dominican Republic 74 

Ecuador 95 

Elve and The Bernisse, case of the 52 

Enemy destination 53, 58, 63 

Enemy origin -_ 53, 58 

False colors 13 


Hauling down of 40 

Use of, by submarines 24 

Forces, foreign, interposition of 71 

Foreign States: 

Disturbed conditions in 72,76,81 

Protection of citizens in , 74 

Foreigners, protection of 76 

France, on abolition of submarines 3 

Oelderland, case of the 101 

Germany, on use of submarines 25 

Great Britain: 

Instructions — 

Armed merchant ships 12 

Defensive armament 24 

On abolition of submarines 2 

On laws of war 56 

Retaliatory order, 1915 60 

Great Corn Island 79 

Green clearance 53 

Grotius 69 

Quj Djemal, case of the 6 

Gutenfels, case of the 122 

INDEX 171 


Hague Convention, VI 17 

Hay-Pauncefote treaty, 1901 120 

Head bounty 7 

Head money 

Helgoland, case of the 125 

Honduras 77 

Hospital ships 47 

Humanity : 

Claims of 73 

Law of 08 

Violation of principles of 4 

Immunities, loss of 5,51 

Immunity, from suit 87 

International law 5, 20, 30, 52, 78, 92, 104 

Municipal law, and 96 

Visit and search, and 34 

Washington Conference, 1921, and 27 

International waterways 128 

Intervention 70 

Professor Stowell on 70 

United States in Honduras 77 

United States in Nicaragua 78 

Japan, on use of submarines 4 

Jefferson 81 

Jurisdiction, over ports 07 

Kiel Canal 127 

Kirkwall practice 35 

Konigsberg, case of the 103 

Letters of assurance 55 

Little Corn Island i 79 

London Naval Treaty. See Treaty, London Naval. 

Marie, case of the 35 

Maritime warfare : 

United States instructions 62 

Use of aircraft in 36. 100 

Merchant marine 48 

Merchant shipping, State control of 9,44 

Merchant vessels : 

Aircraft and 13. 101 

Armed 31 

Admission to neutral ports 14 

American proposal, 1916 21 

British instructions, 1916 12 

British opinion, 1916 : 16 

Italian code, 1877 31 

Netherlands attitude 14 

South American attitude 15 

Status of 8 

Submarines and 23 

Conversion 17, 50, 112 

172 INDEX 

Merchant vessels — Continued. Page 

Destruction 30, 30 

Mnemy 17, 21 

Foreign, desertion from 90 

Ignorance of war 43 

Immunities, loss of 5 

In ports 67, 83 

Ownership of 47 

Sending in of 53, 112 

Subsidized 9 

Summons by aircraft 102 

Use of submarines against 3. 36 

Mexico : 

Closure of port of 94 

Landing of United States forces in 71 

United States policy in 77 

Military service, and aliens 70 

Monroe doctrine 77 

Montana, case of the ^ 38 

Nationals, protection of 71, 74, 76, 95 

Naval auxiliary 44, 4S 

Naval Reserve 48 

Naval unit 19 

" Navicerts " 55 

Necessity, doctrine of 69 

Netherlands, The, attitude toward armed ships 14 

Neutral commerce 59, 92, 95, 110 

Neutral duties, and armed ships 11 

Neutral jurisdiction, and aircraft 109 

Neutral ports : 

Closure of 95 

Port Said as 123, 127 

Use of 11,14,134 

Neutral rights 34, 59 

Neutral zones. See Zones. 

Neutrality 14, 75, 132 

Neutrals, at sea; protection of 27,106 

Nicaragua : 

Closure of ports 91 

Recognition of 79 

United States and 74, 78 

Noncombatants, at sea 52 

Protection of 27, 106 

Rights of 21 

Treatment of 34 

Norway, action in Nicaragua 92 

Offense, and defense 6, 12, 64 

Olindc Rodriaues, case of the 19 

Order, in port 66, 72, 76, 83 

Ostsee, case of the 54 

Panama : 

Neutrality of 131 

Panama Canal Zone and 132 

INDEX 173 


Panama Canal, British opinion on 121 

Panama, case of the 16 

" Peaceful traders " 11 

Pellworm, case of the 40 

Pindos, case of the 125 

Piracy 9, 33 

Pirates 73 

Political refugees 73 

Port Said 119, 124 

Porto Alexandre, 1920, case of the 87 

Ports : 

Closure of 91 

Order in 67,83 

Ports : 

Dutch 14 

Neutral. See Neutral ports. 

Preparatory disarmament conference 112 

Prescription 78 

Privateers 16, 73 

Prize, bringing in, of 54 

Prize bounty 6 

Prize court decision 6 

Prize court rules, British 63 

Prize money 6, 20 

" Proceed as directed " 36, 105, 107, 110 

Property : 

Private — 

At sea, exemption of 51 

Protection of 72,93 

Protected zones. See Zones. 

Protection 71 

Obligation of 78 

Renunciation of 95 

Public opinion 26 

"Radius of action" 19 

Reay, Lord, on merchant ships 18 

Recognition 81 

Reprisals 25, 59 

Requisition 60 

Certificate of 45 

Charters 45 

Responsibility of States 96 

Retaliation 10, 22 

Revolution, right of 81 

Root, Mr., on submarines 26 

Rostock, case of the 125 

Ruse de guerre 13 

Russia, volunteer fleet of 9 

Safety, place of 5,22,26,36,10(5 

Salvage 84 

Salvage awards 85 

Salvage contract 84 

Seizure 28, 36, 107 

174 INDEX 


Self-preservation 67, L02 

8i itral Dutch Schurjts, case of the G 

Seward, on revolution 81 

►Shipping, State control of 44 

Ships (see also Merchant vessels; Vessels) (i 

Classes of 41 

Legal categories 13 

Siam 88 

Sovereignty 59, 78 

Steamship John G. McCullough, case of the 50 

Submarine warfare 22 

Submarines : 

Abolition of 2, 25 

Armed merchant vessels and 12. 23 

American proposals 21 

British instructions 24 

Belligerent 12, 26 

Commission of jurists on 105 

German statement, 1916 25 

Laws of war and 30 

London Naval Treaty, article 22 1. 159 

Professor Hyde on 37 

Regulation of use of 2. 25 

Visit by aircraft 1 101 

Washington Conference, 1921 25. 36 

Washington treaty on 111 

Subsidies 44. 47 

Suez Canal 115, 122 

Suez Canal treaty 116 

Summons 37. 62 

By aircraft 102 

Suspicion, grounds of 39, 52, 56 

Switzerland, neutrality regulation 133 

Time charter 47 

Treaties : 

Assistance and salvage at sea, 1910 85 

Runau-Varilla-Hay 131 

Five Central American republics, 1923 78 

Hay Pauncefote 120, 130 

London Naval Treaty, 1930 1. 64. 113, 137 

Regarding deserters, termination of 90 

Suez Maritime Canal, 1888 115 

United States and Great Britain, 1901 — 120 

United States and Nicaragua, 1914 79 

United States and Panama 131 

United States and Siam 88 

Versailles 127 

Washington, 1871 10 

Washington. 1922 17, 105. Ill 

Twenty-four hour rule 116. 121 

United States : 

Control of shipping 45 

Deserters, and 90 

INDEX 175 

United States— Continued. Page 

Legislation on release of State-owned ships 86 

Nicaragua and i— 75, 79 

On submarines 2, 21 

Panama Canal Zone, neutrality regulations 131 

Recognition policy in Central America 80 

United States Shipping Board 45 

Emergency fleet 48 

Release of vessels 8(5 

Status of vessels 48 

Unneutral service 34, 60 

Venezuela 95 

Vessels : 

Auxiliary 10, 14, 31, 42 

Bringing in of - 54,60 

Character of 47 

( Classification of 10 

Combatant and noncombatant 41 

Detention of. See Detention. 

Enemy, Sir Frederick Smith on 51 

In port 68 

Merchant. See Merchant vessels. 

On time charter 47 

Public 49. 83 

Salvage and 84, 89 

Treatment of 51 

Requisitioning 9 

Sending in of Dutch 52 

State-owned 50. 87 

Release of 86 

United States Shipping Board 48 

Vessels of war - 41, 116 

Admission to Dutch ports 14 

Aircraft as auxiliary 101 

Armed merchant vessels and 

Definition of term 10 

Entrance to foreign port 14. 68 

Visit and search 16, 28. 34, 38 

At. port of detention 61 

At sea (;i 

By aircraft — 

American attitude 61. 105 

British attitude 100 

Commission of jurists on 109 

Italian attitude 108 

Japanese attitude 108 

Bringing into port for 55 

Deviation for 112 

Refusal to stop for 26, 35, (54 

Resistance to 26,44,64,113 

Right of 111 

Submarine by aircraft 101 

Von Eysinga, on legal category ships 13 

176 INDEX 

War : Page 

Aircraft in 100 

Laws of — 

Great Britain and 56 

Violation of 33 

Submarines and 30 

Warships. See Vessels of war. 

Washington Conference, 1921-22 25,36,104 

Washington treaty, 1871 10 

Washington treaty, 1922 17, 105, 111 

Wilson, President, recognition policy 82 

Wimbledon, case of the 127 

Wireless telegraphy, United States control in Panama 121, 131 

Wolf, case of the 104 

Wolf chen, case of the 104 

Zones : 

Neutral 74,76,80 

Protected 73